THE 


E 


ORENSIC    QPEECHES 


DAVID  PAUL  BROWN, 


FROM  IMPORTANT  TRIALS, 


AND    EMBRACING 


A  PERIOD  OF  FORTY  YEARS. 


EDITED    BY    HIS    SON, 

ROBERT   EDEN   BROWN. 


PHILADELPHIA: 
KING  &  BAIRD,  PUBLISHERS,  607  SANSOM  STREET. 

MDCCCLXXIII. 


Entered  according  to  Act  of  Congress,  in  the  year  1873,  by 

ROBERT    EDEN    BROWN, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


EDITOR'S    PREFACE. 


THE  following  collection,  or  rather  selection,  of  the 
Forensic  Speeches  of  the  late  DAVID  PAUL  BROWN,  are 
now  presented  to  the  legal  profession  and  the  reading 
public,  in  the  belief  that  such  a  compilation  would  ap- 
propriately and  acceptably  meet  the  wishes  of  the  many 
admirers  and  friends  of  the  deceased. 

Although  a  volume,  possessing  the  main  features  of  the 
present  one,  was  in  contemplation  at  the  time  of  Mr. 
Brown's  death,  it  is  a  subject  of  regret  to  the  compiler, 
which  will  perhaps  be  shared  by  the  reader,  that  the 
selections  embraced  in  the  following  pages,  were  not  in 
any  way  indicated  by  the  deceased. 

That  responsibility,  therefore,  rests  wholly  with  the 
Editor  and  if  these  selections  do  not  appear  always  the 
most  worthy  of  the  orator  or  the  reader,  the  blame 
should  attach  where  it  properly  belongs. 

No  excuse  can  be  necessary  for  this  self-imposed  task  ; 
yet,  if  one  were  needed,  it  might  be  found  in  an  earnest 
desire  to  revive  in  some  degree  that  love  of  eloquence 
which  more  particularly  characterized  the  earlier  days  of 
the  Philadelphia  Bar,  and  made  the  name  of  a  "  Phila- 
delphia Lawyer"  proverbially  synonymous  with  the  high- 
est excellencies  of  the  profession. 

It  was  this  desire,  combined  with  a  devotion  to  his 

(iii) 

2083249 


IV  PREFACE. 

profession,  which  embraced  the  whole  "  Bar "  as  one 
united  family,  that  induced  Mr.  Brown  to  devote  the 
scanty  leisure  afforded  by  professional  duties,  to  the 
preparation  of  the  "Forum,"  in  the  introduction  to 
which  he  says : 

"I  may  be  permitted  in  conclusion  to  say,  that  my 
chief  motive  for  engaging  in  this  undertaking,  is  the 
desire  to  furnish  some  few  memorials  of  the  legal  profes- 
sion. If  this  work  be  not  attempted  now;,  it  never  will 
be.  Every  hour  diminishes  oar  recollections  of  by-gone 
days ;  but  a  few  glimpses  remain ;  and  a  few  short  years 
will  obliterate  every  view  and  vestige  of  what,  in  the  pas- 
sing and  changing  pageants  of  life,  has  been  so  interest- 
ing to  us  all." 

Of  the  speeches  that  follow,  a  word  or  two  of  general 
explanation  is  due  from  the  Editor.  This,  he  believes,  is 
the  only  volume  of  forensic  speeches  that  has  ever 
issued  from  the  American  press,  and  perhaps  the  only 
volume  in  the  language,  if  we  except  the  speeches  of 
Lord  Erskine,  which  are  mainly  in  "  State  Trials,"  and 
consequently  of  semi-political  significance.  This  fact  the 
Editor  adverts  to,  to  show  that  he  has  had  no  guide  to 
direct  him  in  the  path  he  treads,  which,  to  the  generous 
reader,  will  be  ample  apology  for  the  many  imperfections 
that  a  pioneers'  labors  necessarily  exhibit. 

The  chief  embarrassment,  however,  which  the  Editor 
has  experienced,  has  arisen  in  determining  how  far  he 
would  be  justified  in  altering  in  any  particular  the  text 
of  the  following  speeches. 

A  forensic  speech,  even  when  it  contains  the  very 
highest  and  truest  elements  of  oratorical  effect — and  per- 
haps for  that  very  reason — rarely,  if  ever  exhibits  those 


PREFACE.  V 

merits  to  the  reader.  At  the  same  time,  the  trimming 
and  polishing  so  necessary  in  belle-lettre  composition, 
would  take  from  a  delivered  speech  one-half  its  force  in 
the  estimation  of  the  auditor. 

Upon  this  subject,  Mr.  Brown  himself  thus  writes,  in 
presenting  an  extract  from  the  speech  of  William  Lewis, 
LL.  D. : — 

"  We  are  aware,  that  a  speech  in  type  is  a  very  differ- 
ent matter  from  a  speech  delivered.  If  Patrick  Henry's 
fame  depended  upon  the  report  of  his  speeches,  instead  of 
the  effects  which  they  produced,  we  should  be  at  a  loss 
to  conceive  how  he  could  have  acquired  such  deathless 
renown.  This  difference  is  attributable  to  various  causes, 
combining  to  produce  dramatic  effect.  The  court,  the 
jury,  the  issue,  the  surrounding  populace,  the  interest  of 
the  contending  parties  and  their  respective  friends,  the 
presence  of  the  bar,  the  natural  excitement  of  the  occa- 
sion, all  tend  to  impart  animation  and  vigor  to  a  speech, 
and  to  confirm  the  sentiment  of  Cicero,  that  '  no  man  is 

an  orator  without  a  multitude.'  ':I "  Action, 

which  is  said  to  be  the  essence  of  oratory,  is  utterly 
wanting.  The  impassioned  declamations,  the  varied 
tones  of  the  voice,  the  fixed  and  penetrating  eye,  the 
spirit  that  displays  itself  '  from  every  joint  and  motive 
of  the  body,'  are  neither  to  be  appreciated  nor  imagined. 
To  be  understood — to  be  felt,  they  must  be  seen  and 
heard.  Still,  as  we  cannot  revive  the  dead,  their  past 
works  must  speak  for  them."  * 

Every  lawyer  will  recognize  the  truth  of  these  re- 
marks, which  are  here  chiefly  introduced  for  the  infor- 

*  "The  Forum,"  vol.  i,  pp.  459-60. 


VI  PREFACE. 

mation  of  the  unprofessional  reader,  and  to  explain  to  all 
the  motives  which  have  induced  the  Editor  to  present 
these  speeches  as  he  has  found  them,  fresh,  and  almost 
untouched,  from  the  stenographer's  notes. 

As  it  might  reasonably  be  expected,  that  some  bio- 
graphical memoir  of  Mr.  Brown  would  accompany  this 
volume,  it  may  be  proper  to  add,  in  conclusion,  that  this 
has  intentionally  been  omitted  for  several  reasons ;  the 
chief  of  which  is  the  reflection  that  the  filial  tie  is  too 
close  a  one  to  admit  of  that  free  and  impartial  criticism 
of  motives  and  actions,  which  it  is  the  duty  of  the  honest 
biographer,  boldly  to  examine  and  discuss. 

PHILADELPHIA,  June,  1873. 


BINNS'   CASE. 


COMMONWEALTH  OF  PENNSYLVANIA  v.  JOHN  BINNS. 


ASSAULT  AND  BATTERY.    1818. 

This  action  was  brought  against  the  defendant — a  gen- 
tleman of  very  considerable  social  and  political  influence — 
on  the  information  of  a  young  girl — one  of  a  family  of 
German  "  Redemptioners,"  who  had  lately  arrived  in  the 
United  States.  The  child  prosecutrix,  about  nine  years 
of  age,  had  been  indentured  to  Mr.  Binns,  at  that  time 
Editor  of  the  Democratic  Press,  and,  upon  a  suspicion 
of  larceny,  had  been  subjected  to  severe  corporal  pun- 
ishment at  the  hands  of  her  master. 

The  case  presents  no  feature  of  general  interest  at  this 
time ;  yet  the  argument  is  perhaps  deserving  of  its  promi- 
nent place  in  the  following  series,  as  the  first  forensic 
effort  of  its  author. 

For  the  Prosecution. 
G.  M.  DALLAS,  DAVID  PAUL  BROWN. 

For  the  Defence. 
Jos.  R.  INGERSOLL,  JOSIAH  RANDALL. 


FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 


SPEECH  IN  BIKNS'  CASE. 


IN  SUBMISSION  TO  THE  COURT,  GENTLEMEN  OF  THE  JURY: 

The  unusual  concourse  of  spectators  and  auditors  here 
assembled — the  interest  and  anxiety  expressed  in  the 
countenance  of  every  one — the  zeal  and  abilities  of  tne 
gentlemen  to  whom  I  am  opposed — the  painfully  solicit- 
ous emotions  of  my  own  bosom — all,  refer  me  to  the  im- 
portance of  the  cause  in  which  I  am  engaged.  Import- 
ant, not  simply  as  respects  this  poor  child,  or  me,  her 
humble  advocate,  but  as  regards  the  jury  who  sit  here 
to  decide,  as  regards  your  honors  who  sit  there  to  ad- 
judge, and  as  relates  to  the  world.  I  say  it  is  import- 
ant in  relation  to  the  world,  because  the  principles  upon 
which  this  case  are  to  be  decided  are  intertwined,  I 
might  say  identified,  with  the  nearest  and  dearest  feel- 
ings of  the  human  heart.  Impressed  with  this  idea,  I 
cannot  but  regret  the  great  and  manifest  embarrassments 
under  which  I  labor — embarrassments  not  simply  arising 
from  my  youth  and  consequent  inexperience,  but  result- 
ing, in  an  eminent  degree,  from  the  magnitude  of  the 
issue  in  which  I  am  engaged,  and  the  abilities  of  the 
gentlemen  to  whom  I  am  opposed.  N"or  is  this  wonder- 
ful ;  for  such  is  the  constitution  of  the  human  mind,  that 
our  very  fear  frequently  occasions  that  which  we  fear, 
and  in  proportion  as  we  feel  ourselves  called  upon  for 
great  exertions,  in  the  same  proportion  we  are  frequently 
compelled  to  acknowledge  an  utter  inability  to  obey  that 
call. 

There  is  also  another  disadvantage  under  which  I  labor 


BINNS     CASE. 

in  common  with  my  professional  brethren,  and  which  I 
beg  leave  as  far  as  possible  to  endeavor  to  remove — I 
mean  the  prejudice  too  generally  entertained  by  jurors 
to  whom  a  case  may  be  submitted,  that  whatever  may 
be  the  force  or  quality  of  the  arguments  of  counsel, 
they  are  still  entitled  to  but  little  weight,  inasmuch  as 
they  are  the  offspring  of  the  pocket,  not  the  heart — or 
in  other  words,  the  effect  of  pecuniary  influence,  rather 
than  of  any  inclination  to  be  serviceable  to  our  fellow- 
creatures.  Whether  this  be  just  or  unjust — liberal  or 
illiberal,  it  is  not  necessary  for  me  to  inquire;  but  I 
conceive  it  to  be  a  duty  which  I  owe  to  the  profession, 
to  my  client,  to  you,  and  to  myself,  here,  upon  the 
threshold  of  this  case,  unreservedly  and  explicitly  to 
declare  that  I  am  no  hired  advocate  ;  I  appear  before 
you  upon  this  occasion  without  any  other  bribe  than 
my  sympathies ;  without  any  other  object  than  disin- 
terested humanity ;  without  any  other  motive  than  im- 
partial justice.  I  have  no  friendship  for  this  poor  child, 
but  that  which  arises  from  her  misfortunes  and  dis- 
tresses— I  have  no  enmity  to  Mr.  John  Binns,  but  that 
which  arises  from  his  barbarity  and  cruelty.  "  Homo 
sum  et  humani  a  me  nil  alienum  puto."  This  principle  is 
considered  a  sufficient  inducement ;  should  any  excuse  be 
necessary,  I  trust  it  will  prove  a  sufficient  excuse. 

Having  thus  endeavored  to  remove  those  obstacles  or 
impediments  which  stood  between  me  and  the  case,  at 
least  so  far  as  they  were  removable,  let  us  now  turn  our 
attention  to  the  more  immediate  subject  of  the  present 
controversy.  In  doing  this,  however,  I  cannot,  as  the 
opposite  counsel  have  done,  with  perfect  propriety,  invoke 
the  political  or  social  importance  of  my  client,  in  order  to 
give  weight  to  my  argument.  Alas !  she  has  neither.  I 
stand  here  before  you  not  in  behalf  of  a  powerful  and 
influential  citizen,  supported  by  relatives  and  surrounded 
by  friends ;  I  address  you  in  the  cause  of  a  helpless,  hap- 
less and  unprotected  child,  torn  by  the  storms  of  adver- 


10  FORENSIC    SPEECHES   OP   DAVID    PAUL    BROWN. 

sity  from  the  bosom  of  her  parents  and  her  country  ;  a 
child  whose  only  safeguard  from  oppression  in  this  land 
of  strangers,  is  the  verdict  of  an  American  Jury ;  whose 
only  unshaken  hope  of  reliance  is  in  the  Father  of  the 
fatherless.  This,  allow  me  to  say,  is  no  professional  cant ; 
it  is  the  spontaneous  effusion  of  the  heart;  the  sacred 
voice  of  sympathy.  Indeed,  I  should  abhor  myself,  could 
I,  upon  an  occasion  like  this,  where  the  indignant  and 
impatient  soul  is  struggling  for  utterance,  coolly  and 
deliberately  and  dispassionately  indulge  in  the  vanity  of 
chosen  expression.  Nature  requires  not  the  aid  of  art, 
and  had  you  beheld,  as  I  did,  the  lacerated,  mangled,  and 
bleeding  limbs  of  this  poor  helpless  child  ;  had  you  seen, 
as  I  did,  the  swollen  tear  of  agony  that  trembled  in  her 
eye ;  had  you  heard,  as  I  did,  the  sympathetic  and  im- 
pressible groan  that  burst  from  the  assembled  multitude 
in  the  hall  of  justice,  in  contemplating  her  suffering  (that 
groan  which  was  the  unerring  testimony  that  nature  bore 
to  the  barbarity  of  this  procedure),  it  would  be  a  wanton 
and  an  unpardonable  trespass  upon  your  time  and  that  of 
this  honorable  court,  were  I  to  occupy  a  single  moment  of 
your  attention.  Nothing,  says  the  poet,  can  be  added  to 
perfection : 

"  To  gild  refined  gold,  to  paint  the  lily, 
To  throw  a  perfume  on  the  violet, 
To  smooth  the  ice,  or  add  another  hue 
Unto  the  rainbow  ;  or  with  a  taper  light 
To  seek  the  beauteous  eye  of  heaven  to  garnish, 
Is  wasteful  and  ridiculous  excess." 

Not  less  wasteful — not  less  ridiculous  were  every  at- 
tempt of  mine  to  unfold  the  horrors  of  this  most  horrible 
transaction.  The  deed — the  blushing  deed  itself,  dis- 
tances every  effort  of  speech,  and  baffles  all  attempts  at 
description.  The  language  of  man  is  amply  adapted  to 
the  common  excitements  of  life ;  but  weak  and  cold  and 
callous  must  be  that  heart;  which,  upon  occasions  like 
this,  does  not  feel  more  than  the  tongue  can  express. 


BINNS'   CASE.  11 

This,  then,  is  the  character  of  the  case,  which  the 
counsel — adopting  the  principles  and  conduct  of  their 
employer — have  attempted  stigmatizing  with  malice,  as 
they  attempted  stigmatizing  this  poor  child  with  theft, 
and  both  because  they  are  fatherless.*  This  is  the  case 
which  was  to  have  been  ridiculed  out  of  court.  But  it 
will  not  do;  thank  heaven,  honest  nature  is  too  true 
to  herself  either  to  be  laughed  into,  or  out  of  counte- 
nance. The  smiles  that  mantled  over  their  features  were 
as  superficial  as  the  artifice  that  gave  birth  to  them ;  the 
heart,  I  am  sure,  had  no  concern  in  either ;  it  was  a  mere  * 
veil,  thrown  over  their  wretched  cause  to  conceal  its 
rottenness  and  deformity.  The  convulsive  laugh  of  des-  ) 
peration,  while  tottering  on  the  brink  of  ruin — the  hectic 
glow  of  health  on  the  cheek  of  consumption — the  last 
cheerful  effort  of  their  expiring  cause. 

But,  gentlemen,  let  us  not  wander — let  us  not  antici- 
pate. We  owe  something,  it  is  true,  to  feeling,  in  such  a 
cause;  we  owe  more  to  reason; but  we  will,  notwithstand- 
ing, endeavor  as  calmly  and  dispassionately  as  possible 
to  investigate  and  determine  the  merits  of  this  discussion. 
The  fact  of  the  beating  being  admitted,  or  at  any  rate 
proved,  beyond  the  necessity  or  reach  of  argument,  the 
remaining  facts  of  the  case,  appear  properly  and  natur- 
ally to  marshal  themselves  under  these  two  distinct 
points  of  inquiry. 

1st.  Was  any  beating  deserved  ? 

2d.  Was  the  beating  inflicted  justifiable? 

If  either  of  these  inquiries  be  negatively  decided,  the 
defendant  must  be  convicted.  If  no  beating  was  de- 
served; then  the  weight  of  a  finger  in  anger,  is  an  assault 
and  battery,  and  we  must  have  a  verdict.  Or,if  the  first 
part  be  affirmed,  and  you  should  be  satisfied  that  a  beat- 
ing was  deserved,  still  if  the  beating  inflicted  was  unwar- 
rantable and  unreasonable,  all  defence  must  fail. 

*  The  defendant's  counsel  moved  the  court  to  dismiss  the  case  be- 
cause there  was  no  prosecutor  endorsed  on  the  bill. 


12  FORENSIC    SPEECHES   OP   DAVID    PAUL   BROWN. 

Have  the  goodness  to  keep  these  points  in  view,  neither 
be  driven  from  them  by  force,  nor  seduced  by  ingenuity. 
They  will  serve  as  guiding  stars  to  your  councils.  With 
them  you  will  steer  securely  to  correct  conclusions — with- 
out them,  you  will  be  launched  at  once  upon  the  ocean  of 
investigation,  without  helm  or  rudder — without  chart  or 
compass — to  direct  you  in  your  course. 

In  relation  to  the  first  point,  permit -me  to  observe,  that 
there  has  been  no  proof  of  theft,  nor  can  any  be  pro- 
duced. The  honest,  artless  conduct  of  this  poor  child,  is 
"  all  the  world  to  nothing  "  against  this  foul  and  unmer- 
ited aspersion.  They  have  mangled  her  body,  and  with 
fiend-like  vengeance,  unsatisfied  with  that,  they  now  at- 
tempt stabbing  her  infant  reputation. 

"  Spotless  reputation,  which  away, 
Men  are  but  gilded  loam,  or  painted  clay." 

But  even  this  shall  not  avail  them.  I  pledge  myself  to 
furnish  you  with  a  clear  and  fair  interpretation  of  this 
mysterious  transaction.  Since  the  weight  of  shame  must 
fall  somewhere,  let  broader  shoulders  bear  it.  For  my 
part,  I  have  not  the  shade  of  a  doubt— and  if  you  believe 
the  testimony  you  must  concur  in  the  opinion—but  that 
the  money  was  really  given  to  Anna  Maria  Martin,  which 
she  is  now  charged  with  having  stolen.  Do  you  call  for 
the  proof?  Do  you  not  see  that  the  story  of  Benjamin 
Binns  corroborates  that  of  the  child  in  ever}7  particular 
except  one — I  mean  the  gift ;  to  acknowledge  this  were 
ruin.  He  tells  you  that  Mr.  Binns  and  his  lady  rode  out 
on  Saturday — that  Anna  Maria  came  for  money  to  pro- 
vide bread,  and  that  she  afterwards  came  to  call  him  to 
supper.  This  is  precisely  the  story  of  the  child ;  but  she 
goes  further,  and  says  that  when  she  called  him  to  supper, 
he  gave  her  nine-pence,  requesting  her  afterwards  not  to 
reveal  it  to  his  brother.  And  why  this  desire  of  conceal- 
ment? It  is  easily  accounted  for  when  we  remember 
that  it  is  agreed  on  all  hands  that  Mr.  John  Binns  had 


BINNS'   CASE.  13 

forbidden  his  brother  to  give  money  to  Anna  Maria,  as  it 
seems  he  had  prior  to  this  time,  been  in  the  frequent 
habit  of  doing.  Of  this  you  must  be  fully  convinced, 
that  upon  a  candid  examination  of  their  respective  stories, 
there  is  every  reason  to  give  credence  to  that  of  the  child. 
She  had  no  inducement,  she  had  no  power  to  misrepre- 
sent— from  the  first  to  the  last,  her  testimony  has  been 
the  same;  natural,  uniform,  and  consistent;  alike  free 
from  cunning  and  constraint.  Of  his  testimony,  on  the 
contrary,  we  may  at  least  say  it  is  suspicious.  His  con- 
nection with  the  defendant,  his  dependence  upon  the  de- 
fendant, of  necessity  have  some  influence  upon  his  mind ; 
added  to  which,  having  early  asserted  her  guilt  to  his 
brother,  he  dare  not  deny  it  now.  Having  sworn  to  it 
before  the  mayor,  he  dare  not  now  forswear  himself.  To 
bolster  up  their  case  as  well  as  possible,  and  to  withdraw 
your  attention  from  the  proper  subject  of  controversy, 
they  have  contrived  to  drag  in  the  countenance  of  Mr. 
Benjamin  Biuns;  I  presume,  as  a  sort  of  rallyiug-point  to 
their  defeated  hopes.  But,  gentlemen,  this  is  not  a  case  of 
countenance,  and  if  it  were,  their  condition  is  in  no  wise 
improved.  Come  hither  Anna  Maria  Martin, — lay  off 
your  hat, — look  at  the  jury, — poor  child,  though  her 
features  are  dressed  in  sorrow,  though  the  joyless  tear 
bedews  her  sparkling  eye,  still  I  may  with  propriety  say, 
that  she  suffers  nothing  in  a  comparison  with  Mr.  Benja- 
min Binns,  nor  any  other  member  of  the  Binus  family 
that  I  have  hitherto  seen.  This  then  is  the  relative  posi- 
tion of  the  prosecution  and  defence.  Let  us  for  a  moment 
compare  the  testimony  ;  weigh  them, — the  one  clearly  pre- 
ponderates, while  the  other  kicks  the  beam;  test  them, — 
the  one  evaporates  in  air,  the  other  assumes  a  firmer 
texture,  and  lays  a  closer  hold  upon  the  heart ;  analyze 
them, — the  defendant's  testimony  dwindles  into  dross, 
while  that  on  behalf  of  the  prosecution 

"  Like  purest  gold,  that's  tortured  in  tho  furnace, 
Comes  forth  more  bright,  and  brings  forth  all  its  weight." 


14  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

The  next  witness  in  the  order  of  merit,  adduced  by  the 
defendant,  is  Mary  Caldwell,  who  lived  with  Mr.  Binns, 
when  Anna  Maria  was  bound ;  and  continued  living  with 
him  a  considerable  time  after.  What  does  she  say  ? — noth- 
ing to  the  purpose  :  "  Anna  Maria  was  not  very  good  nor 
very  bad.  I  believe  there  were  complaints,  chiefly  from 
children  in  the  family,  with  whom  she  quarrelled  and  dis- 
agreed. I  often  saw  her  have  money,  about  which  she 
sometimes  told  different  stories.  I  remember  no  particu- 
lar instance.  There  was  no  money  in  places  she  could  get 
it  from.  Her  character  was  not  good."  Hence  it  seems 
that  Mrs.  Caldwell  did  not  entertain  the  most  favorable 
opinion  of  this  child;  and  the  next  inquiry  is,  what  opin- 
ion shall  we  entertain  of  Mrs.  Caldwell  ?  She  comes  be- 
fore us  perfectly  unknown,  perfectly  unsupported,  and  for 
what  purpose?  Not  to  testify  to  the  general  character  of 
Maria  ;  not  to  say  what  reputation  she  sustained  in  the 
neighborhood,  which  would  afford  us  an  opportunity  of 
refutation,  but  to  declare  her  individual  opinion,  and  thus 
to  blight  the  opening  prospects  of  this  child,  without 
being  able  to  supply  us  with  a  single  doubtful  virtue  from 
which  this  opinion  may  have  been  derived.  This  is 
weaker  than  air.  and  lighter  than  vanity.  Probably 
Anna  Maria  has  quite  as  unfavorable  an  opinion  of  Mrs. 
Caldwell,  and  how  are  their  respective  merits  to  be  ad- 
justed ?  It  was  a  saying  of  Agesilaus,  the  renowned  king 
of  Sparta,  that  "  the  character  of  an  informer  is  as  neces- 
sary to  be  known,  as  that  of  the  person  informed  against," 
and  it  is  a  well  settled  maxim,  both  in  reason  and  law, 
"  that  the  character  of  every  one  should  suffer,  in  propor- 
tion to  the  weight  of  his  character  who  bears  testimony 
against  it."  How  then,  upon  these  principles,  stands  the 
account  ?  what  unquestionable  title  to  belief  has  the  wit- 
ness produced?  "What  all  powerful  and  mysterious  charm 
does  she  possess,  that  is  at  the  same  time  to  prostrate  the 
characters  of  others,  and  yet  preserve  her  own  unsullied 
and  unharmed?  But  I  will  press  this  matter  no  further, 


BINNS'   CASE.  15 

it  is  at  all  times  painful  to  me  to  derogate  in  the  slightest 
degree  from  the  reputation  of  any  one,  or  throw  upon  them 
a  shade  of  imputation  ;  and  if  upon  the  present  occasion  I 
have  violated  my  general  disposition,  let  the  opposite 
party  remember  that  to  them  it  is  to  be  imputed,  and  let 
them  also  remember,  to  use  the  homely  but  forcible  illus- 
tration of  the  proverb,  that  "  those  persons  who  live  in 
glass  houses  should  not  throw  stones." 

The  next  witness  whom  you  have  had  examined,  is 
Mrs.  Susan  West,  who  occasionally  nurses  Mrs.  Binns. 
(This  lady's  testimony  read.)  Here  there  are  petty  child- 
ish quarrels  raked  up  from  all  parts  of  the  house — from 
the  cellar  to  the  garret,  from  the  kitchen  to  the  parlor, — 
as  the  materials  of  a  defence.  Nothing  is  too  trivial  -or 
minute  to  escape  their  attention — cleaning  the  knives  and 
forks  is  called  in  to  their  aid;  and  even  brick-dust  itself, 
is  relied  upon  as  giving  color  to  this  defence.  She  was 
not  cleanly  in  her  person  !  Have  they  shown  that  she 
was  well  supplied  with  raiment ;  that  the  cause  was  not 
with  the  master  ;  if  not,  her  uncleanliness  does  not  make 
their  case  the  whiter.  In  short,  the  evidence  of  Mrs. 
West  proves  no  beating  deserved,  and  if  it  operates  at  all, 
it  is  unquestionably  in  our  favor.  The  story  of  Kelly — 
fifteen  years  of  age — the  chit-chat  of  Magdaline — thirteen 
years  old ;  and  the  say-so  of  young  Nicholas — I  consign  at 
once  into  utter  oblivion,  as  matter  of  indifference 'or  con- 
tempt. Their  representations  are  probably  strictly  true, 
but  they  have  nothing  to  do  with  the  controversy ;  and 
if  they  were  clearly  all  untrue,  I  should  pass  over  them  in 
silence,  as  my  province  is  to  defend  not  to  ruin  children; 
to  excuse,  not  to  abuse  their  errors; to  extenuate^  not  to  ag- 
gravate their  crimes. 

Here  ends  the  elaborate  defence ;  upon  this  slender 
basis,  for  this  is  substantially  all,  you  are  called  upon  to 
acquit  the  defendant,  and  destroy  this  child — to  justify 
this  barbarity,  by  charging  her  with  theft.  And  yet  all 
the  charges  brought  against  her — unable  to  speak  and 


16  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

defend  herself,  lisping  an  equivocal,  and  to  her,  uncertain 
language — might  with  just  as  much  probability  and  proof, 
be  produced  against  the  children  of  any  one  of  you. 

Leaving  you,  then,  to  decide  upon  this  testimony,  with- 
out further  remark,  upon  the  course  of  reflection  already 
suggested,  I  think  you  must  be  perfectly  satisfied  that  no 
theft  has  been  proven — no  impropriety  of  conduct  estab- 
lished against  Anna  Maria  Martin  ;  and  consequently  that 
this  beating,  was  as  wanton  and  undeserved  as  it  was 
cruel,  barbarous,  and  bloody. 

There  is  one  thing,  however,  that  it  may  be  proper  here 
to  observe,  and  which  to  me  is  convincing  and  conclusive 
as  to  the  testimony  of  the  innocence  of  this  child,  and 
that  is,her  resolute  refusal  to  confess  her  guilt,  under  the 
giant  arm  of  her  cruel  master.  Neither  fear  nor  hope 
could  induce  it.  "My  brother  denies  the  gift,  confess 
your  crime,  acknowledge  yourself  a  thief,  come  stab  your 
soul,  and  I  will  spare  your  body  /"  This  is,  in  effect,  the 
exhortation  of  the  tyrant.  What  is  her  reply  ?  "I  have 
told  the  truth  ;  your  brother  cannot  deny  it ;  let  him  be 
called — let  me  confront  him."  Alas,  poor  child,  you 
rested  on  a  broken  reed,  when  you  leaned  upon  Mr.  Ben- 
jamin Binns — when  you  trusted  to  the  "compunctious 
visitings"  of  his  conscience.  He  appears  ;  again  he  per- 
sists in  his  denial ;  and  again  her  infant  limbs  writhe  be- 
neath the  inhuman  lash.  They  may  extort  groans,  but 
not  falsehoods.  The  flesh  shrinks,  but  the  soul  still 
stands  firm.  Merciful  heaven !  can  such  things  be,  in  a 
charitable,  Christian  land  ?  Despots  may  exercise  their 
power  upon  the  rebellious  or  refractory,  and  thereby  pun- 
ish, and  subjugate  them  to  their  arbitrary  will ;  but  there 
is  something  in  the  female  character — there  is  something 
in  infancy — something  in  feebleness  and  helplessness,  that 
should  palsy  or  unnerve  even  a  tyrant's  arm.  "  How  shall 
we  hope  for  mercy,  rendering  none  ?"  (Great  applause.*) 

*  Stenographer. 


BINNS'   CASE.  17 

But  to  recur  to  our  proposed  arrangement.  You  must 
be  convinced,  I  say,  tha-t  the  punishment  was  undeserved 
and  unmanly,  and  inflicted  even  without  the  shadow  of  a 
cause ;  yet  that  we  may  meet  the  case  in  every  possible 
aspect,  confront  it  at  every  point  of  the  compass,  and 
leave  them  not  an  inch  of  ground  upon  which  to  plant 
their  defence,  let  us  suppose  for  a  moment,  as  a  matter  of 
argument,  what,  remember,  I  unequivocally  deny,  that 
this  child  was  guilty  of  the  sin  imputed  to  her,  and  pro- 
ceed to  the  second  proposed  point  of  inquiry. 

2d.  Was  the  beating  inflicted  justifiable? 

You  have  heard  what  has  been  uttered  against  her, — a 
mere  "mouse  from  a  mountain" — of  malice;  you  know  her 
fault ;  what  was  the  punishment  ?  Has  the  defendant 
produced  any  testimony  that  can  be  relied  upon?  has 
he  produced  a  single  witness,  out  of  the  many  who 
beheld  the  misery  of  this  child,  to  testify  to  his  modera- 
tion ?  Not  one !  Some  of  the  doctors  who  saw  her 
several  clays  after  the  beating,  thought  her  at  that  time 
not  "  dangerous;"  and  it  is  highly  probable  had  they  even 
seen  her  before,  when  her  back  was  covered  with  welts, 
and  perfectly  discolored  with  extravasated  blood,  they 
might  have  entertained  precisely  the  same  opinion.  But 
the  danger  is  not  the  criterion  of  moderation ;  had  she 
been  perfectly  flayed  alive;  had,  as  was  supposed  by  one 
of  the  witnesses,  a  red  hot  gridiron  been  applied  to  her 
back,  it  might  not  in  the  view  of  those  gentlemen  have 
been  dangerous ;  but  I  am  certain  it  would  have  been 
brutal ;  I  am  certain  it  would  have  been  barbarous  ;  I 
am  certain  it  would  never  have  received  the  countenance 
or  sanction  of  a  benevolent  and  humane  American  jury. 

Far  be  it  from  me  to  impute  any  natural  hardness  of 
heart  to  those  medical  gentlemen ;  but  we  all  know  the 
duties  of  their  profession  ;  we  have  all  felt  the  force  of 
habit  and  familiarity,  and  perhaps  it  is  not  venturing  too 
much  to  say,  that  men  who  have  spent  a  considerable 
part  of  their  lives  in  the  slaughter-house  of  their  species, 

2 


18  FORENSIC   SPEECHES    OF   DAVID   PAUL    BROWN. 

surrounded  by  all  the  imagery  of  death  and  disaster,  are 
at  least,  not  those  whose  opinion-  should  govern  in  the 
construction  of  this  case.  If  a  doctor  were  called  upon 
to  define  a  "battery",  he  would  no  doubt  consider  it  the 
loss  or  injury  of  some  vital  part  of  the  human  frame; 
whereas  in  certain  circumstances,  this  would  be  down- 
right murder.  A  lawyer,  however,  will  tell  you  that 
laying  a  finger  improperly  upon  another,  constitutes  a 
battery.  On  the  other  hand,  a  lawyer  who  saw  the 
operation  incident  to  the  extirpation  of  an  eye,  a  fracture 
of  the  skull,  or  a  dislocation  of  the  limbs,  would  pn> 
nounce  them  all  terrible  calamities ;  yet  a  surgeon  would 
tell  you,  with  a  face  of  perfect  composure,  with  heart  of 
stone,  and  nerves  of  steel,  that  these  are  common-place 
occurrences, — mere  trivial  matters  unattended  by  much 
danger, — and  whisk  you  through  the  whole  anatomy  of 
the  human  system  and  catalogue  of  physical  ills,  with  as 
much  self-complacency  and  good  humor,  as  he  would 
lead  his  partner  down  a  dance.  Let  us  shun  both 
extremes.  I  ask  you  to  decide  this  case  neither  by  the 
technical  absurdities  of  the  one,  nor  refined  barbarities  of 
the  other.  "  Medio  tutissimus  ibis," — the  middle  course  is 
safest.  "Let  then  the  testimony  of  your  unbiassed  and 
unperverted  fellow-citizens  govern  your  deliberations; 
they  who  know  that  a  fellow  creature  may  be  injured 
and  still  retain  his  head  upon  his  shoulders ;  and  yet  at 
the  same  time  do  not  carry  this  belief  to  such  an  extreme 
as  to  lead  them  to  consider  the  wind  of  the  fist  as  an 
absolute  assault. 

But,  gentlemen,  I  pledge  myself  to  show  you  that  the 
evidence  of  even  the  doctors  themselves,  and  particularly 
that  of  Dr.  Cullen,  inimical,  as  it  intentionally  was,  to  the 
cause  that  I  espouse,  is  for  the  most  part  illusory,  falla- 
cious, and  unfounded.  Dr.  Cullen  tells  you  that  he 
received  a  note  from  Mr.  John  Binns,  requesting  him  in 
company  with  Dr.  Griffiths,  to  call  upon  Anna  Maria 
Martin,  to  examine  her  back,  and  afford  any  medical  or 


CASE.  19 

surgical  aid  that  might  be  required.  Is  not  tliis  a  proof 
that  Binns  himself  thought  the  child  materially  injured? 
why  talk  of  medical  and  surgical  assistance?  why  send 
TWO  learned  members  of  the  faculty  ?  was  not  one  suffi- 
cient ? — or  did  he  believe  the  case  to  be  so  desperate  as  to 
require  consultation  ?  I  leave  you  to  divine  his  thoughts 
and  his  motives,  while  I  proceed  to  my  anatomical  and 
physiological  inquiries.  (Reads  the  testimony.) 

"  There  was,"  says  Dr.  Cullen,  "  no  swelling  at  the  time 
of  examination,  though  the  flesh  was  still  discolored." 
Xow,  gentlemen,  I  do  not,  as  the  doctor  does,  pretend  to 
be  a  complete  surgeon  or  anatomist,  yet  those  branches 
of  medical  science  formed  one  of  the  pastimes  of  my  youth, 
and  although  I  never  wrote  a  treatise, — although  I  never 
committed  one  to  memory, — although  I  never  had  occa- 
sion to  appear  in  the  capacity  of  a  physician  before  a  court 
and  jury  in  behalf  of  a  friend, — and  although  I  never  in- 
structed counsel  to  ask  me  questions  calculated  to  elicit 
my  knowledge  and  conceal  my  ignorance, — yet  I  will  en- 
deavor to  rescue  so  much  of  my  reading  from  the  grasp 
of  forgetfulness,  as  may  enable  me  briefly,  but  I  trust  sat- 
isfactorily, to  answer  the  medical  hypotheses  (they  de- 
serve no  better  name),  which  have  beeu  forced  upon  our 
attention.  In  the  first  place  then,  the  want  of  swelling 
at  the  time  of  examination,  as  was  asserted  by  the  doc- 
tors, was  a  conclusive  proof  of  the  want  of  severity!  This 
I  deny ;  and  I  throw  myself  with  confidence  upon  your 
own  knowledge  to  support  the  denial.  I  refer  you  to 
that  book,  which  lies  open  before  you  all,  as  a  refutation 
of  such  doctrine — I  mean  the  book  of  experience.  You 
have  all  no  doubt  observed,  in  cases  of  children,  where 
they  have  received  any  very  severe  contusions  and  bruises, 
in  consequence  of  falls,  that  the  swelling  subsides  and  the 
extravasated  blood  is  completely  absorbed  in  the  course 
of  a  very  few  days.  The  absorbents  in  children,  particu- 
larly in  those  of  a  vigorous  constitution,  arc  extremely 
powerful,  and  will  take  up  large  quantities  of  extrava- 


20  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

sated  blood  in  a  short  time;  and  will,  indeed,  remove  many 
other  obstructions  to  a  healthy  and  free  exercise  of  the 
animal  functions,  such  as  decayed  bones,  &c.  These  ab- 
sorbents are  certain  vessels  connected  with  the  internal 
skin  or  cutus  vera,  by  means  of  the  cellular  membrane, 
and  are  wisely  provided  by  nature  to  supply  or  remedy 
the  defects  or  injuries  of  the  veins ;  as  when,  for  instance, 
the  blood-vessels  or  veins  are  ruptured  by  extreme  vio- 
lence, and  are  so  impaired  as  to  prevent  their  returning 
the  blood  to  the  heart,  here  the  absorbent  powers  inter- 
fere, assist  the  wounded  vein,  and  thus  prevent  mortifica- 
tion or  suppuration,  which  must  otherwise  inevitably 
ensue. 

The  doctors  also  stated,  that  the  bruised  parts  bore 
compressing  and  rubbing  without  any  symptoms  of  pain, 
and  this  fact  appeared  to  afford  matter  of  considerable 
exultation  to  the  opposite  counsel.  But,  gentlemen,  I 
defy  them,  had  they  ransacked  all  the  stores  of  their  in- 
vention, to  have  produced  a  circumstance  which  would 
militate  more  strongly  against  themselves.  Why,  the 
answer  is  plain — the  parts  were  DEAD.  The  violence  of 
the  beating  had  in  some  measure,  at  any  rate,  destroyed 
their  vitality ;  this  is  therefore  a  proof  of  the  severity,  not 
the  mildness  of  the  punishment. 

But  they  say  "  there  was  no  laceration  or  breaking 
of  the  outside  skin,  and  consequently  no  blood."  The 
doctrine  of  outside  and  inside,  of  external  and  internal 
skin,  upon  which  the  doctors  have  dwelt  with  so  much 
emphasis,  although  by  no  means  obscure  itself,  has  been 
so  wrapped  up  in  technical  mysteries,  as  to  require  some 
slight  elucidation  ;  and  as  Dr.  Cullen  has  taken  some 
liberties  with  the  Common  Law,  he  must  in  turn  indulge 
me  with  a  few  strictures  upon  this  part  of  his  admirable 
thesis.  The  outside  or  visible  skin  is  known  by  the  name 
of  cuticle,  epidermis,  or  scarf; and  I  presume  is  what  is 
vulgarly  denominated  "  the  scurf ;"  as  when  the  hand  is 
grazed  roughly  by  any  hard  substance  we  might  say  the 


BINNS'   CASE.  21 

scurf  is  merely  rubbed  off.  This  skin  is  perfectly  insen- 
sible, and  serves  as  a  sort  of  protection  or  coat  to  the  in- 
side skin,  which  is  highly  sensible.  It  is  to  mankind 
what  scales  are  to  a  fish,  so  that  you  may  break  the  out- 
side skin  or  cutus  vera,  or  true  skin,  without  destroying 
or  removing  the  scarf  or  scales,  which  form  an  integu- 
ment sufficiently  close  and  firm  to  prevent  the  emission 
of  blood  ; — you  may  completely  crush  a  fish  without  dis- 
composing a  single  scale. 

So  far,  then,  from  the  blood's  failing  to  flow,  being  an 
argument  for  the  defendant,  it  is  subservient  to  the  prose- 
cution. The  internal  skin,  I  have  shown  you,  may  be 
broken  without  breaking  the  external  skin ;  and  if  this 
take  place,  the  contusion  is  much  more  dangerous  than 
in  cases  of  an  incised  wound,  where  nature  is  relieved  in 
a  great  measure  without  the  tardy  and  painful  process  of 
absorption.  But,  says  Dr.  Cooper,*  "  I  do  not  believe  the 
scarf  skin  can  be  broken  without  the  flowing  of  blood." 
With  great  reverence  and  respect  for  the  doctor,  I  must 
be  allowed  to  dispute  this  ;  nay,  I  will  go  further,  and 
broadly  assert,  that  the  scarf  and  the  true  skin  may  both 
be  broken  and  still  no  blood  emitted.  As  to  the  scarf, 
you  have  often  seen  it  rubbed  off  without  the  issuing  of 
any  blood,  and  it  therefore  requires  no  reasoning  from 
me.  In  respect  to  the  true  skin,  I  say  with  perfect  con- 
fidence, that  although  the  slightest  puncture  will  be  fol- 
lowed by  Wood,  yet  when  the  wound  is  extremely  severe, 
and  the  parts  are  very  much  bruised,  the  channels  of  the 
blood  become  choked  and  there  is  little  or  no  bleediuo-. 

o 

As  in  the  case  related  in  Chesseldenf  of  the  unfortunate 
miller  whose  arm  was  torn  off  by  the  cog-wheel  of  a  mill, 
and  also  in  a  case  cited  by  Dr.  Physick  in  his  admirable 
lecture,  of  a  similar  accident  happening  to  a  boy :  in  both 
of  which  instances,  though  one  of  the  most  material  ar- 
teries in  the  human  system  was  completely  severed,  yet 

*  Dorsey's  Cooper,  p.  63. 

f  Chesselden's  Anatomy,  p.  321. 


22  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

scarcely  sufficient  blood  issued  from  the  wounded  body  to 
stain  the  linen  that  was  bandaged  around  it.  Go  into  the 
field  of  battle,  examine  the  victims  of  war,  many  of  them 
almost  entirely  dismembered,  yet  struggling  in  the  grasp 
of  death  for  days — their  arms,  their  legs  torn  away — why 
is  this?  the  current  of  life  may  be  exhausted  in  a  single 
hour,  why  then  this  lingering  ?  because  the  vitality  of 
the  parts  is  so  destroyed  as  to  prevent  the  exercise  of 
their  function ;  and  bence  the  hopeless  invalid  is  for  some 
time  subjected  to  the  horrors  of  a  living  death.  So  much 
for  the  theory  of  Dr.  Cooper;  it  has  no  foundation  in 
fact.  As  to  the  case  of  the  dead  man's  mark,  or  the 
appearance  upon  the  skin  of  spots  resembling  iron  mould, 
which  Dr.  Cullen  has  adverted  to,  in  illustration  of  his 
theory  of  absorption  and  extravasation,  I  will  venture 
to  assert  that  both  the  name  and  nature  ascribed  to  them 
are  equally  unknown  to  the  medical  world.  Those  spots 
are  not  the  effect  of  extravasated  blood,  but  probably 
arise  from  the  serum,  one  of  the  constituents  of  the 
blood,  oozing  through  the  veins.  The  case  of  Mrs.  G.'s 
child  was  also  unfortunately  alluded  to  by  the  doctor  in 
explanation  of  his  -enigmas.  "What  I  shall  we  suffer  him 
to  tell  us  that  the  mark  on  the  back  of  an  infant  arising 
from  a  slight  blow  of  the  mother's  hand,  is  an  extravasa- 
tion of  blood.  'Tis  silly,  'tis  preposterous  in  the  extreme  ; 
every  child-nurse  knows  better ;  why,  according  to  the 
gentleman's  notion,  every  hectic  glow  of  the  blood — 
every  fever — every  blush  that  mantles  on  a  lady's  cheek, 
is  an  extravasation.  But  cast  your  eyes  upon  the  resplen- 
dent pages  of  Darwin  and  of  Brown,  of  Rush  and  of 
Physick,  and  this  misty  error  is  at  once  dispelled.  They 
will  tell  you  that  the  discoloration  is  the  effect  not  of 
ruptured  vessels  but  of  too  .much  excitement  ;  not  of 
blood  being  forced  out  of  its  natural  channels,  but  of  its 
being  propelled  through  these  channels  with  unusual 
violence.  Feel  the  pulse  during  a  fever  ;  it  will  be  found 
much  fuller  and  stronger  than  usual,  and  the  same  obser- 


BINNS'   CASE.  23 

vation  will  apply  equally  well  in  relation  to  a  blush. 
Hope,  shame,  anger,  anxiety, — almost  any  sudden  emo- 
tion of  the  mind — will  so  affect  the  physical  system,  as 
to  throw  unusual  quantities  of  blood  in  the  veins,  and 
thus  of  consequence,  increase  the  pulse  and  flush  the  fea- 
tures ;  but  no  man  but  the  learned  doctor,  I  am  sure, 
ever  dreamt  of  this  being  an  extravasation.  A  single 
remark  and  I  bid  farewell,  a  long  farewell,  to  physic. 

I  have  been  really  astonished  and  disgusted,  to  discover 
so  much  madness  in  the  sequel  of  that  story,  whose  pre- 
face promised  so  much  wisdom.  To  leave  now  this  medi. 
cal  jargon,  which  is  as  inconsistent  with  itself  as  with 
reason,  "  and  fall  somewhat  into  a  slower  method  ;"  what 
say  your  unbiassed  and  unperverted  fellow-citizens? 

Mrs.  Maria  Welsh  tells  you.  that  the  beating  was  ex- 
tremely severe,  from  the  shoulders  down  to  the  waist. 
Upon  inquiring  the  cause,  the  child  told  precisely  the 
same  story  as  that  related  in  court. 

What  says  Mrs.  Brown  ?  "A  most  cruel  beating ! " 
What  says  Mrs.  Burrows  ?  "  The  child's  back  exhibited 
the  most  awful  spectacle  I  ever  beheld ;  no  welts  could  be 
distinguished ;  it  was  one  entire  bruise ;  it  resembled 
beef's  liver;  the  blood  seemed  just  ready  to  start  from 
the  skin."  What  says  Dr.  Frick  ?  What  says  his  Honor 
the  Mayor,  a  man  who  for  many  years  held  the  highest 
and  most  responsible  station  of  your  city  as  a  magistrate 
and  guardian",  and  who  has  discharged  his  various-  and 
arduous  duties  with  credit  to  himself  and  advantage  to 
the  community?  He  tells  you  that  never  in  the  exercise 
of  his  functions,  either  in  his  office  or  in  the  court,  has 
he  beheld  so  severe  a  beating  on  so  young  a  child.  It  is 
unnecessary  for  me  to  indulge  in  a  more  minute  recapitu- 
lation of  the  testimony.  To  advert  to  it  is,  I  trust,  in 
itself,  sufficient  to  destroy  all  the  wire-drawn  notions,  and 
burst  all  the  airy  bubbles,  that  may  be  blown  upon  the 
case. 

After  such  conclusive  evidence,  can  any  man  seriously 


24  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

listen  for  a  moment  to  a  labored  argument  professing  to 
show  that  such  beating  as  this  is  justifiable,  either  "  in 
foro  conscientia"  or  "  in  foro  humano" — in  the  sight  of 
God,  or  in  the  sight  of  man  ?  If  the  child  was  guilty, 
which  I  deny ;  her  guilt  would  not  have  authorized  such 
gross  inhumanity.  If  the  laws  were  violated ;  they  stand 
their  own  avengers.  Let  her  be  charged  with  larceny — 
let  her  be  indicted  and  arraigned.  This  respectable  jury 
shall  try,  and  this  honorable  court  shall  pronounce 
upon  her  crime ;  but,  thank  Heaven,  no  man — not  the 
Governor  of  the  State,  not  the  President  of  the  United 
States ;  nay,  not  even  John  Binns  himself,  can  discharge 
in  this  free  and  happy  land,  the  four-fold  office  of  witness, 
juror,  judge  and  executioner. 

In  the  capacity  of  a  master,  I  admit  he  had  the  author- 
ity of  the  law,  in  inflicting  moderate  chastisement  for 
salutary,  not  vindictive  purposes.  This  is  a  right  pos- 
sessed by  all  persons  standing  in  the  relation  of  husband, 
father,  teacher,  captain  and  master,  and  which  may  be 
exercised  on  their  wives,  children,  pupils,  sailors  and  ser- 
vants. But  "  in  the  name  of  all  the  gods  at  once,"  what 
possible  operation  is  the  admission  of  this  abstract  principle 
to  have  upon  the  present  controversy  ?  In  order  that  they 
may  enjoy  its  protection  they  must  bring  themselves 
within  its  provision.  Moderation  is  essential  to  justifi- 
cation ;  for  at  the  very  last  session  of  the  court  a  school- 
master was  convicted  for  an  assault  and  battery  upon  a 
scholar,  because  he  had  exceeded  the  limits  of  propriety 
in  punishment.  Indictments  and  convictions  of  captains 
for  abuse  of  sailors  are  frequent,  notwithstanding  the 
rope's  end  privilege  ;  and  but  a  few  days  since  a  client 
of  mine  was  deservedly  condemned  and  sentenced  to  im- 
prisonment, merely  for  giving  his  wife  a  single  blow, 
though  in  my  opinion,  sex  aside,  she  merited  a  dozen. 

To  sum  up  all,  then,  we  say  that  in  our  case  any  pun- 
ishment, however  slight,  would  have  been  unwarrantable, 
and  an  assault  and  battery,  because  there  was  no  offence  ; 


BINNS'   CASE.  25 

and  we  say  further,  that  the  blackest  and  most  heinous 
offence  would  have  been  no  justification  for  a  beating  so 
severe. 

I  have  now  done  my  part,  feebly  and  imperfectly,  I 
must  acknowledge,  but  as  fully  as  my  feelings  and  inex- 
perience would  permit.  It  remains  for  you  to  do  yours. 
The  worldly  destinies  of  this  poor  child  are  now  in  your 
hands.  Her  character  and  her  cause  are  with  you ;  you 
may  stigmatize  her  with  dishonor  and  dishonesty,  or 
wash  her  white  as  snow ;  you  may  either  cast  her  like  a 
loathsome  weed  from  the  bosom  of  society,  or  exhibit  her 
as  an  example  of  suffering  innocence  to  the  philanthropic 
and  humane.  Added  to  this,  you  are  to-day  to  declare 
whether  mingled  tears  and  blood  are  subjects  of  commise- 
ration with  an  American  jury.  Whether  .domestic  ty- 
rants are  to  trample  with  impunity  upon  the  helpless 
victim  whom  misfortune  or  distress  may  have  placed  at 
their  feet.  "Whether  your  own  children,  or  the  children 
of  your  friends — of  your  fellow-citizens — of  your  fellow- 
creatures  (for  who  shall  control  the  fickle  smiles  of  for- 
tune ?)  should  they  be  reduced  to  the  miserable  situation 
of  this  poor  child,  helpless,  hapless  and  forlorn — should 
they  be  sundered  from  your  fostering  and  protecting 
arms,  and  subjected  to  the  merciless  and  iron  despotism 
of  men  like  the  defendant — which  'heaven  forbid  ! — you 
are,  I  say,  now  to  declare,  if  such  were  their  sad  lot, 
whether  they  should  pour  forth  their  infant  lives  in  irre- 
mediable distress,  or  look  forward  to  your  verdict  and 
the  records  of  this  court,  as  the  heralds  which  proclaim 
their  deliverance  at  hand.  I  invoke  you,  then,  by  that 
holy  tie  which  subsists  between  parent  and  child; 
by  the  sacred  rites  of  hospitality;  by  the  immutable 
principles  of  justice,  to  redress  the  injuries  of  this  in- 
jured, friendless,  stranger  child.  Will  you  hereafter 
dare  to  come  into  this  court  when  your  own  children 
are  abused,  and  claim  the  intervention  of  the  law,  and 
yet  refuse  it  to  this  friendless  girl?  Why,  your  own 


26  FORENSIC    SPEECHES   OF    DAVID   PAUL    BROWN. 

verdict  shall  be  cast  into  your  teeth;  "even-handed  justice 
shall  return  the  poisoned  chalice  to  your  own  lips ;"  and 
the  opposing  counsel  shall  tauntingly  exclaim,  "  What ! 
are  you,  whose  flinty  hearts  resisted  the  tears  and  blood 
of  the  oppressed  ;  are  you,  who  sanctioned  unparalleled 
severity  in  the  case  of  Anna  Maria  Martin,  the  friendless 
German  child  ;  are  you,  so  peculiarly  sensitive  and  alive 
when  your  own  flesh  and  blood  are  concerned  ?  AWAY 
WITH  YOU  ! "  Never,  until  you  obliterate  from  the  pages 
of  that  book,  by  tears  of  penitence,  the  record  of  this 
day's  error — of  this  day's  WRONG,  can  you  expect  an  at- 
tentive ear  to  the  story  of  your  own  griefs.  REMEMBER 
THIS.  And,  above  all,  remember  "  with  what  judgment 
ye  judge,  3-6  shall  be  judged  :  and  with  what  measure  ye 
mete,  it  shall  be  measured  to  you  again." 

VERDICT:  GUILTY. 


JUDGE  PORTER'S  CASE. 


THE  IMPEACHMENT  OF  JUDGE  PORTER,  BEFORE  THE  SENATE 
OF  PENNSYLVANIA,  1825. 

INTRODUCTION. 

The  argument  in  this  case,  though  not  strictly  em- 
braced by  the  .title  of  "  Forensic  Speeches,"  the  Editor  has 
thought  proper  to  introduce  here  as  calculated  to  show 
the  rapidity  with  which  Mr.  Brown  rose  in  popular 
estimation;  and  the  mark  which  he — even  at  this  early 
day  in  his  professional  career — made  upon  those  high  in 
position  and  influence.  It  appears — and  we  are  indebted 
to  the  Hon.  Wm.  A.  Porter  for  the  statement — that  in 
the  year  1822  Mr.  Brown,  with  Mr.  Hayes,  was  engaged 
in  a  very  important  case  before  Judge  Porter  (a  brother 
of  the  late  Governor  Porter),  at  Reading,  Pa.,  in  which 
they  were  opposed  by  James  Buchanan,  subsequently 
President  of  the  United  States,  Mr,  Bai'rd,  Mr.  Biddle, 
Mr.  Dayton,  Mr.  Frederick  Smith  and  Mr.  Charles  Smith, 
the  latter  afterwards  Judge  of  the  Supreme  Court.  Al- 
though quite  a  young  man — and  naturally  impressed  with 
the  matured  talents  and  character  of  those  opposed  to 
him — Mr.  Brown  conducted  his  cause  in  such  a  manner, 
as  to  produce  upon  the  mind  of  the  Judge  before  whom 
it  was  argued  so  strong  an  effect ;  that  when,  some  two 
years  afterwards,  articles  of  accusation  and  impeachment 
placed  him  in  the  position  of  a  defendant,  he  at  once 
secured  Mr.  Brown's  professional  assistance. 

The  trial  of  Judge  Porter  was  fixed  for  "  Tuesday,  De- 
cember 13th,  1825,^'  when  the  Articles  of  Impeachment 
were  read,  and  the  respondent's  answers  filed;  but,  in  con- 
sequence of  the  absence  of  witnesses  in  support  of  the 
impeachment,  and  other  technical  grounds  of  delay,  the 

(27) 


28  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

/ 

trial  was  not  fairly  entered  upon  until  December  21st, 
1825. 

There  were  twelve  Articles  of  Impeachment  investiga- 
ted, which  occupied  ten  days;  when,  by  an  almost  unani- 
mous vote  of  the  members  of  the  court,  Judge  Porter  was 
most  honorably  acquitted, December  31st,  1825. 

As  the  introduction  of  the  several  articles  of  Impeach- 
ment with  the  respondent's  answers,  would  occupy  more 
space  than  is  consistent  with  the  prescribed  limits  of 
this  volume;  and  as  an  attempted  condensation  of  them 
would  require  scarcely  less  space ;  the  Editor,  by  way  of 
presenting  the  main  features  of  this  investigation,  takes 
the  opportunity  of  offering  Mr.  Brown's  "  Opening 
Speech,"  which,  at  the  same  time,  will  elucidate  the 
points  in  controversy,  and  give  a  specimen  (the  only  one 
contained  in  this  volume)  of  his  style  in  the  original  pre- 
sentation of  a  case. 

For  the  Managers. 
SAMUEL  DOUGLASS,  ESQ. 

For  the  Respondent. 
DAVID  PAUL  BROWN. 


IMPEACHMENT   OF  JUDGE    PORTER.  29 


OPENING  SPEECH 
IN    DEFENCE    OF    JUDGE    PORTER 


MR.   PRESIDENT  AND   GENTLEMEN 

OF  THIS  HONORABLE   COURT: 

The  evidence  on  the  part  of  the  prosecution  being 
closed,  it  becomes  my  duty,  representing  as  I  do  the  hon- 
orable respondent,  to  submit  ^to  you  the  grounds  upon/ 
which,  he  will  rely  for  his  defence,  if  a  defence  can  be 
required  in  a  case  like  the  present,  where  the  attack  is 
in  itself  suicidal.  In  doing  this  I  should  act  in  entire 
accordance  with  precedent  and  example,  were  I  to  in- 
dulge in  argumentative  remarks,  in  connection  with  a 
detail  of  facts  which  the  testimony  will  amply  supply. 
But  it  is  my  intention,  as  far  as  may  be  compatible  with 
the  discharge  of  my  duty,  rigidly  to  consult  the  time  and 
convenience  of  this  distinguished  court,  asking  only  in 
requital  a  patient  and  attentive  hearing.  It  is  a  subject 
of  unfeigned  regret  that  the  honorable  managers  should 
have  been  unable,  with  all  the  indulgence  which  has  been 
extended  to  them  in  the  prosecution  of  this  complaint,  to 
submit  the  evidence  in  the  order  of  the  charges ;  and  thus 
to  impart  to  them,  by  method  and  arrangement,  a  per- 
specuity  which,  under  existing  circumstances,  is  solicited, 
and  sought  for,  in  vain.  Philosophy,  however,  teaches  us 
not  to  increase  our  griefs  by  the  expression  of  unavailing 
regret;  but  rather  to  relieve,  by  boldly  confronting  them. 
The  respondent,  who  from  the  earliest  age  has  enjoyed 
the  confidence  of  the  government;  and  whose  fair  fame 
the  breath  of  calumny  has  not  dared  to  taint,  stands  now 


30  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

arraigned  before  you  upon  charges  of  a  highly  criminal 
character ;  not  by  the  House  of  Representatives ;  not  by 
the  people  of  Pennsylvania ;  but,  as  I  will  show  you,  by 
individuals — to  name  even  some  of  whom  would  be  to  fail 
in  the  respect  which  I  owe  to  this  honorable  court  and  to 
myself.  As,  however,  he  has  served  the  State  with  fidel- 
ity in  every  situation  to  which  he  has  been  called,  and 
particularly  in  the  discharge  of  his  judicial  functions,  he 
is  as  faithfully  prepared  to  render  an  account  of  his  stew- 
ardship; and  not  only  to  vindicate  himself  from  all  un- 
merited assertions,  but  to  vindicate  the  source  whence  his 
authority  is  derived.  Allow  me,  Mr.  President,  with  a 
view  to  this  object,  to  call  your  attention  generally  to 
the  charges  preferred,  in  order  that  we  may  be  the  more 
fully  comprehended,  in  the  introduction  of  the  defence. 
The  evil  must  be  known  ere  the  remedy  can  be  applied ; 
the  character  of  the  poison  must  be  ascertained,  before 
we  can  hope  for  an  antidote. 

The  charges  in  their  nature  somewhat  resemble  indict- 
ments, or  counts  in  indictments ;  certain  facts  are  set 
forth  from  which  certain  deductions  or  inferences  are 
drawn. 

The  first  of  these  charges  against  the  respondent, is  for 
corruptly  denying  a  citizen  the  right  to  have  justice  ad- 
ministered, without  sale,  denial  or  delay. 

The  second,  for  violating  the  personal  liberty  of  the 
citizen,  degrading  the  character  of  the  court,  and  bring- 
ing the  authority  of  the  laws  into  contempt. 

The  third,  for  attempting  to  suppress  and  compound  a 
felony — to  screen  the  guilty  from  justice;  and  endeavoring 
to  induce  a  judicial  officer  to  commit  a  misdemeanor  in 
office. 

The  fourth,  for  allowing  a  prisoner  charged  with  lar- 
ceny to  purchase  his  acquittal. 

The  fifth,  for  evincing  disgraceful  passions  and  partiali- 
ties, denying  justice  and  bringing  the  administration  of 
it  into  contempt. 


IMPEACHMENT    OF   JUDGE   PORTER.  31 

The  sixth,  for  wilfully  and  illegally  obstructing  the 
rights  of  the  parties. 

The  seventh,  for  refusing  and  neglecting  to  file  his 
opinions  in  writing. 

The  eighth,  for  unlawfully  altering  the  valuation  of 
property,  on  which  the  assessment  of  road  tax  was  made. 

The  ninth,  tenth,  and  eleventh,  are  but  specifications 
of  the  twelfth  article,  which  charges  the  respondent  with 
contemptuous  conduct  towards  his  associate. 

These  imputed  offences  must  depend  upon  the  specifi- 
cations contained  in  the  charges.  We  say  they  are 
wholly  unsupported  by  the  facts  set  forth  in  the  articles  ; 
by  the  facts  proved ;  or  by  the  implication  of  law  aris- 
ing from  either  or  both.  And  it  is  necessary  to  sustain 
this  prosecution,  that  the  conclusions  as  well  as  the  premi- 
ses should  be  established  by  proof.  The  prosecution  how- 
ever have  asked  you,  that  if  the  facts  should  be  proved, 
you  should  pass  upon  them  ;  although  they  may  not  sup- 
port the  conclusion  drawn  from  them  in  these  accusa- 
tions. But  let  us  not  anticipate  the  defence. 

These  are  the  charges  in  the  general ;  in  their  details 
some  of  them  are  too  odious,  some  of  them  too  ridicu- 
lous, and  all  of  them  too  worthless,  to  be  entitled  to  a 
serious  reply.  But  before  this  highly  honorable  court, 
composed  of  men  of  character,  and  who  therefore  may 
fairly  be  presumed  to  know  the  value  of  character — that 
jewel  of  the  soul,  which  when  once  lost  never  can  be  re- 
gained in  its  original  lustre — before  such  men,  I  say,  the 
respondent  is  willing  to  lay  open  th,e  whole  volume  of 
his  life,  and  to  expose  all  its  blots  and  its  erasures.  Per- 
fection in  man  is  not  to  be  expected,  as  it  never  has  been 
and  never  can  be  attained  ;  but  so  far  as  regards  purity 
of  motive,  and  an  honest  exercise  of  those  intellectual 
faculties,  which  the  GOD  of  nature  gave  him ;  and  which 
should  therefore  be  a  subject  of  gratitude  rather  than 
boast — so  far,  through  me,  he  challenges  the  strictest  and 
severest  ordeal.  Prior  to  entering  upon  our  answer  to 


32  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWN. 

those  charges,  to  which  I  have  thus  generally  adverted, 
I  must  be  permitted  to  observe,that  there  is  one  difficulty 
which  we  would  most  sincerely  deprecate  on  this  occa- 
sion ;  arising  from  the  indefinite  character  of  some  of  the 
charges,  and  the  remoteness  of  time  to  which  they  relate. 
But  however  embarrassing  those  circumstances  might 
prove  against  the  wicked  or  the  weak,  they  have  no 
terrors  for  us.  We  are  so  strongly  armed  in  honesty,  that 
we  defy  the  confederated  powers  of  darkness  (at  least  be- 
fore this  judicious  and  enlightened  tribunal),  to  cast  upon 
the  respondent  a  shadow  of  suspicion  of  moral  or  official 
impropriety.  That  he  may  have  failings  we  shall  not 
deny ;  it  is  the  lot  of  man.  That  he  may  have  fre- 
quently erred,  it  is  not  necessary  to  dispute  ;  it  is  the 
privilege  of  nature,  and  by  nature  it  shall  be  excused  if 
it  cannot  be  justified.  In  addition  to  the  difficulty,  thus 
merely  intimated,  there  is  another :  I  refer  to  the  manner 
in  which  the  testimony  for  the  prosecution  has  been  in- 
troduced, and  the  frequent  interlocutory  appeals  on  the 
part  of  the  honorable  managers.  Turn  to  your  notes, 
Mr.  President,  and  you  will  perceive,  that  in  the  intro- 
duction of  this  testimony — I  say  not  from  what  cause — 
no  order  has  been  consulted,  except  the  order  of  inverse 
proportion  ;  no  consistency  regarded,  no  legal  propriety 
respected  ;  but  all  matters  have  been  heterogeneously 
jumbled  together  in  an  inextricable  and  interminable 
chaos,  from  which  nothing  but  divine  inspiration — which 
I  may  be  permitted  to  say,  has  not  been  sufficiently  con- 
sulted by  our  adversaries  in  the  institution  of  these  pro- 
ceedings— can  possibly  redeem  them.  Light  may,  it  is 
true,  issue  from  darkness ;  order  may  spring  from  confu- 
sion ;  but  the  light  that  shall  shine  on  the  darkness  of 
guilt,  would  serve  only  to  expose  its  horrors  and  deformi- 
ties ;  and  the  order  that  springs  from  confusion,  is  calcu- 
lated to  unfold  that  which  was  intended  to  be  concealed. 
There  is  still  another  circumstance  of  embarrassment  in 
this  matter,  although  I  admit  it  is  scarcely  a  'subject  of 


IMPEACHMENT   OF   JUDGE   PORTER.  33 

complaint,  inasmuch  as  it  naturally  arises  from  the  situa- 
tion of  the  respondent.  I  mean  the  fact  of  those  persons 
who  are  arrayed  against  him,  having  in  the  matters  to 
which  their  testimony  mainly  refers,  been  the  losing 
parties ;  or  at  least  having  their  professional  feelings 
wounded,  by  unsuccessful  professional  efforts.  This,  I 
say,  is  natural,  but  it  is  not  the  less  to  be  regretted  in 
its  operation  on  this  cause.  Like  the  wife  of  the  great 
Julius,  the  motives  of  testimony  should  not  only  be  spot- 
less— as  for  the  most  part,  I  heartily  believe  upon  this 
occasion  they  are — but  they  should  be  exempt  from  the 
taint  of  suspicion.  Man,  in  his  best  estate  is  fallible  ; 
reason  is  weak  ;  and  passion  powerful ;  and  it  requires 
no  ghost  come  from  the  grave  to  tell  us,  which  is  to  be 
the  subsidiary  of  the  other.  "We  all  know  that  it  is  no 
easy  matter  for  counsel  themselves,  even  in  their  best 
efforts,  to  satisfy  the  desires  of  their  clients,  where  those 
efforts  prove  unsuccessful — and  it  is  certainly  still  less 
to  be  supposed  that  a  judge  however  impartial,  or  a  jury 
however  just,  whose  duty  it  is  to  determine  between  con- 
flicting parties,  can  afford  satisfaction  to  both.  Judges 
tj^erefore  have  only  to  satisfy  the  dictates  of  their  own 
hearts,  and  whatever  may  be  their  penalties  and  suffer- 
ings, the  consciousness  of  unerring  moral  rectitude  shall 
bear  them  through  them  all. 

O 

Having  adverted  to  the  difficulty  encountered  from  the 
cause  and  character  of  the  prosecution's  testimony,  I  will 
now  call  your  attention  to  the  remarks  of  the  counsel  in 
his  opening,  and  then  conclude  by  submitting  to  you  a 
general  outline  of  our  defence ;  reserving  it  for  the  testi- 
mony, as  connected  with  our  answers  to  the  charges,  to 
supply  the  lights  and  shades,  and  more  particular  features 
of  the  cause. 

It  is  said,  and  although  not  exactly  compatible  with 
the  character  of  an  opening,  I  deem  it  my  duty  to  refer 
to  it ;  as,  if  proper  to  be  asserted,  it  is  worthy  of  notice 
in  reply;  that  sufficient  time  has  not  been  afforded  to  the 

3 


34  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

honorable  managers  and  their  counsel  for  that  elaborate 
preparation,which, according  to  his  yiews,the  case  appears 
to  require.  No!  Why  not?  Have  we  not  had  adjourn- 
ment upon  adjournment  for  the  accommodation  of  the 
gentlemen?  Were  not  these  charges  preferred  twelve 
months  ago,  against  the  honorable  respondent?  And 
were  not  the  seeds  of  this  iniquitous  harvest,  sown — as 
appears  by  the  proof — nearly  nine  years  since,  by  some  of 
the  prosecutors  ?  And  still  is  it  not  ripe  ?  But  I  agree 
with  the  gentleman  ;  notwithstanding  all  this,  the  time 
allotted  them  has  been  insufficient.  But  it  is  not  the 
fault  of  the  Senate — it  is  the  fault  of  the  CAUSE. 

Will  they  ask  time  to  reanimate  the  dead — to  impart 
the  rose  of  health  to  the  wan  cheek  of  consumption  ? — to 
cause  the  tottering  and  feeble  limbs  of  age  to  knit  with 
strength, and  feel  a  second  youth?  In  short  to  do  any- 
thing  most  hopeless  and  impossible?  Why  then  they 
may  crave  time  to  give  shape  and  strength,  and  form, 
and  feature,  to  this  ricketty  and  misbegotten  offspring  of 
malice  and  persecution. 

It  is  said  too  by  the  counsel,  I  quote  his  very  language, 
that  "  this  trial  has  been  urged  with  very  considerable 
strictness."  Who  talks  of  urgency  and  strictness?  Does 
the  respondent  ?  Dragged  from  his  peaceful  fireside — 
from  the  bosom  of  an  affectionate  and  endearing  family — 
in  a  word,  from  his  domestic  gods;  not  loaded  with 
chains,  it  is  true,  like  a  common  malefactor,  but  with 
worse,  an  imputation  of  crime — Does  he  complain  of 
strictness — of  urgency — of  severity  ?  No  !  It  is  his  ac- 
cusers. Those  who  have  thus  brought  him  hither. 

o 

Thus  much  I  owed  to  the  vindication  of  this  honorable 
court — to  the  dignity  and  justice  of  the  commonwealth. 

The  counsel  has  also  thought  proper  to  speak  of  his 
candor  and  impartiality.  Alas !  with  him  it  was  but  a 
barren  and  a  fruitless  theme.  For  my  part  I  profess  no 
impartiality  upon  such  an  occasion.  I  cannot  sir, — I 
cannot  be  impartial  when  I  behold  an  aged  servant  of  the 


IMPEACHMENT   OF   JUDGE   PORTER.  35 

commonwealth  buffeting  the  hillows  of  adversity,  and 
confronting  the  storm  ;  not  for  his  life,  his  country  shall 
have  that,  but  for  the  preservation  of  the  pearl  of  great 
price,  his  jewelled  reputation ;  without  which  life  is  a  bur- 
then, and  the  world  a  waste.  I  say  in  contemplating 
such  a  scene  I  cannot  be  impartial.  Nay,  more,  I  never 
shall  envy  the  feelings  of  that  man,  who  can  patiently 
behold  a  struggle  so  glorious  as  this  and — in  the  consci- 

f  oo  c^ 

ousness  of  his  own  self-security — cant  coldly  of  the  sub- 
lime virtue  of  inflexible  impartiality. 

But,  sir,  to  return  to  the  facts  of  the  case. 

In  explanation  of  the  defence:  the  lucidness,  ability 
and  accuracy,  with  which  the  facts  connected  with  this 
case,  are  detailed  in  the  answers  to  the  charges,  read  to 
you  on  behalf  of  the  respondent,  have  left  me  but  little 
to  say. 

The  first  article  charged,  relates  to  the  circumstances 
attending  the  case  of  Seitzinger  v.  Zeller,  in  the  Common 
Pleas  of  Berks  county.  We  shall  explain  and  qualify 
certain  parts  of  this  article.  We  will  show  that  Judge 
Porter  was  obliged  to  preside,  in  consequence  of  the  affi- 
nity of  one  of  his  associates  to  one  of  the  -parties  in- 
terested. That  Judge  Witman  was  a  relative  to  Daniel 

o 

H.  Otto,  one  of  the  creditors  of  Zeller.  We  shall  show 
you  that  Marks  J.  Biddle,  Esq.,  is  in  error,  as  to  more 
than  one  circumstance,  in  that  case.  That  he  never  dis- 
cussed the  case  before  the  referee,  as  he  has  stated  he  did. 
That  he  did  not  ask  the  judge  to  retire,  or  say  anything 
from  which  it  could  be  inferred  he  did  not  wish  him  to 
sit.  That  at  least,  if  he  did  make  the  observation  to 
which  he  has  testified,  Judge  Porter,  did  not  hear  it. 
That  it  was  not  heard  by  either  Judge  Witman  or  Judge 
Snyder,  who  were  on  the  bench ;  by  Mr.  Smith  or  Mr. 
Hayes,  who  were  concerned  in  the  cause,  and  were  at  the 
council  table  at  the  time ;  or  by  Gen.  Addams,  the  Pro- 
thonotar}'-,  who  sat  at  his  desk  between  Mr.  Biddle  and 
Judge  Porter.  But  even  if  the  observation  had  been 


36  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

heard  by  Judge  Porter,  I  by  no  means  admit  that  he  was 
bound  to  retire  on  Mr.  Biddle's  request. 

In  regard  to  the  second  article,  relative  to  the  lecture 
given  to  the  gambling-house  keepers — Beidleman,  Young 
and  Haberacker,  at  Allentown ;  we  shall  adduce  but  lit- 
tle evidence,  because  the  facts  alleged,  with  one  or  two 
exceptions,  are  admitted.  We  will  prove  very  conclu- 
sively that  the  words  "villains"  or  "scoundrels"  were 
not  applied  to  them  by  Judge  Porter  ;  that  if  those  terms 
still  ring  in  the  ears  of  those  persons,  it  was  their  con- 
sciences, and  not  Judge  Porter,  that  applied  the  epithet 
to  them. 

As  to  the  third  article,  it  will  appear  that  the  facts  set 
forth  in  our  answer  are  true.  That  so  far  from  the  judge 
becoming  a  volunteer  in  the  transaction,  he  was  informed 
by  both  parties,  that  it  was  a  mere  trifling  matter  of 
quarrel  between  neighbors,  as  it  really  was.  But  as  soon 
as  he  discovered  the  nature  of  the  prosecution,  which  was 
disclosed  to  him  by  Justice  Weygandt,  he  said  nothing 
more  in  relation  to  it ;  and  on  the  trial  of  the  accused 
before  him  a  few  days  after,  she  was  convicted  and  sen- 
tenced for  the  larceny. 

The  fourth  article  refers  to  the  trial  of  the  case  of  the 
Commonwealth  v.  John  Mill.  It  will  appear  that  there 
was  no  ground  for  the  prosecution.  That  after  hearing 
all  the  evidence,it  was  discovered  by  the  counsel  and  the 
court,  that  no  larceny  had  been  committed.  The  counsel 
thereupon  arranged  the  matter,  by  securing  the  prosecu- 
tor's demand,  which  had  been  the  original  cause  of  the 
institution  of  the  prosecution. 

The  fifth  article  alleges  improper  conduct  in  the  re- 
spondent, in  the  case  of  Wannemacher  v.  Sechler.  In 
that  case  Judge  Porter  charged  the  jury,  that  as  the 
defendant  had  pleaded  guilty  and  submitted — in  the  in- 
dictment found  against  him  for  the  same  assault  and 
battery — the  plaintiff  was  entitled  to  a  verdict  for  some- 
thing; but  what  the  amount  should  be,  was  left,  as  it 


IMPEACHMENT   OF   JUDGE    PORTER.  37 

should  have  been,  exclusively  to  the  jury  to  determine. 
The  jury  disregarding  the  charge  thus  given — which  was 
the  settled  law  of  the  land — most  improperly  found  a  ver- 
dict for  the  defendant ;  and  the  court — as  they  had  a  right 
to  do — granted  a  new  trial.  Courts  have  their  rights; 
and  the  safety  of  our  institutions  depend  on  their  preser- 
vation. It  would  seem,  however,  from  the  doctrine  now 
advanced, that  juries  have  a  right  to  trample  on  the  rights 
of  the  court  with  perfect  impunity :  and  if  their  actions, 
no  matter  how  improper,  are  attempted  to  be  controlled 
by  the  court,  the  judge  is  to  be  forthwith  charged  before 
the  Legislature,  and  subjected  to  an  impeachment  for 
high  crimes  and  misdemeanors !  "We  will  show  that  a 
motion  was  made,  by  the  plaintiff's  counsel,  for  a  new 
trial.  ,A.nd  had  no  such  motion  been  made,  the  court 
possessed  the  right  to  grant  the  new  trial,  instanter;  and 
the  judge  would  have  deserved  credit  for  so  doing.  The 
jury  have  no  right  in  civil  cases  to  take  upon  themselves 
the  decision  of  the  law.  The  judge  did  not  make  use  of 
the  expressions  charged  against  him,  nor  was  there  any 
violence  or  impropriety  in  his  manner.  There  is  certainly 
an  error  of  impression  in  regard  to  this  matter.  The  re- 
spectable gentleman  who  was  counsel  in  the  cause  for  the 
defendant,  was  much  excited  at  the  time,  as  he  himself 
states ;  and  is  therefore  unable  to  detail  the  circumstan- 
ces with  that  correctness  which  would,  under  other  cir- 
cumstances, have  been  expected  from  him. 

In  relation  to  the  sixth  article,  which  impugns  the  re- 
spondent's conduct  in  regard  to  the  case  of  Hays  v.  Bellas, 
we  will  show,  that  the  words  contained  in  this  "  article  " 
were  actually  used  in  the  charge  delivered  to  the  jury ; 
and  that  the  judge  did  not  know  of  the  charge  having 
been  filed,  when  he  made  the  interlineation.  In  reference 
to  the  marginal  note  on  the  bill  of  exceptions ;  we  will 
prove,  that  it  was  written  on  the  bill  of  exceptions  before 
it  was  signed  and  sealed  by  the  judge  ;  that  it  was  accord- 
ing to  the  fact  as  it  occurred ;  that  there  was  such  an 


38  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

agreement  between  the  counsel  made,  as  is  there  stated ; 
that  it  was  so  understood  by  the  court :  and  that  there- 
fore the  judge  was  right  in  making  the  correction  before 
he  put  his  seal  to  the  bill  of  exceptions,  and  would  have 
been  criminal  had  he  not  done  so. 

The  seventh  article  charges  the  respondent  with  a  re- 
fusal to  reduce  his  opinions  to  writing  when  required  so 
to  do. 

As  to  the  first  branch  of  his  accusation — the  case  of 
Helfrich  and  Grim  v.  Seip's  Administrators — if  such  a 
request  was  made  by  the  plaintiff's  counsel,  it  was  not 
heard  by  the  court.  It  was  not  heard  by  Mr.  Smith,  the 
attorney  general,  who  was  concerned  for  the  defendants, 
who  will  detail  certain  other  matters  which  occurred  sub- 
sequently in  the  case,  which  will  put  it  beyond  question, 
that  such  an  application  could  not  have  been  made. 

In  regard  to  the  case  of  Schwenk  v.  Ebert,  it  will  ap- 
pear that  a  mere  intimation  was  given  that  the  plaintiff's 
counsel  was  desirous  of  having  the  case  reviewed,  if  it 
should  be  deemed  necessary ;  that  this  intimation  was  not 
followed  up  by  any  subsequent  application  to  the  judge: 
and  that  in  truth  every  fact  in  the  case,  necessary  to  its 
being  fully  understood,  in  the  court  above,  had  a  revision 
been  had,  appeared  on  the  record  of  the  cause. 

As  to  the  eighth  article,  if  it  should  be  pressed,  we 
will  prove  the  facts  averred  in  the  answer  thereto,  now 
on  your  desks.  And  upon  that  proof  being  made  we 
can  have  no  fear  as  to  your  decision  upon  it. 

The  ninth,  tenth  and  eleventh  articles  have  relation 
to  the  conduct  of  Judges  Porter  and  Cooper  towards  each 
other.  In  regard  to  the  ninth,  we  will  show  that  the 
boy  Smith  was  really  sick ;  that  humanity  called  ior  his 
discharge ;  that  the  court  could  not  sever  the  sentence 
of  the  two  defendants ;  that  Judge  Cooper's  resistance 
of  the  application  was  as  unnatural  as  it  was  rude ;  that 
if  Judge  Porter  was  betrayed  into  any  warmth  of  ex- 
pression, it  was  but  human  nature  expressing  its  natural 


IMPEACHMENT  OF  JUDGE  PORTER.  39 

feelings,  and  therefore  is  rather  a  matter  of  praise  than  of 
accusation.  And  permit  me  here  to  observe,  that  this, 
as  well  as  some  of  the  other  articles  of  accusation,  in- 
stead of  being  matter  of  impeachment,  are  proud  plumes 
in  the  respondent's  character. 

As  to  the  other  two  articles,  the  tenth  and  eleventh,  we 
shall  exhibit  to  you  the  testimony  of  some  disinterested 
witnesses,  who  will  detail  the  circumstances  as  they  oc- 
curred, accurately:  and  if  they  will  not  entirely  justify, 
they  will  at  least  fully  excuse  the  respondent's  conduct ; 
and  show  you,  that  in  pointing  out  the  mote  in  our  eye, 
Judge  Cooper  forgot  the  beam  in  his  own.  We  will  show 
you  that  a  disposition  to  dictate  and  to  arrogate,  has  uni- 
formly characterized  that  gentleman's  conduct  on  the 
bench,. which  if  not  submitted  to,  would  uniformly  find 
vent,  if  not  in  paroxysms  of  anger,  in  at  least  rudeness 
and  ungentlemanly  conduct,  calculated  to  irritate  and 
offend  his  fellow  judges. 

In  addition  to  all  this  we  will  show ;  in  answer  to  the 
charge  of  corruption,  which  will  be  found  laid  in  several 
of  the  articles,  that  the  respondent  has  uniformly  main- 
tained an  unsullied  reputation  for  honesty  of  motive  and 
integrity  of  character. 

Aiid  having  satisfied  you  of  these  facts  in  way  of  quali- 
fication or  explanation  of  the  charges  preferred ;  after 
having  briefly  submitted  to  you  our  views  of  the  case, 
we  shall  rely  upon  this  distinguished  court,  for  a  prompt 
and  honorable  acquittal. 


40  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 


ARGUMENT  IN 
IMPEACHMENT  OF  JUDGE  POETER 


WITS  DEFERENCE  TO  THIS  HONORABLE  COURT: 

Enfeebled  and  exhausted  as  I  am,  by  the  protracted 
investigation  of  this  cause,  I  arise  to  address  this  honor- 
able court,  not  in  the  vain  expectation  that  I  shall  be  able 
fully  to  discharge  my  duty  and  do  justice  to  the  subject 
of  inquiry ;  but  in  the  hope  that  by  those  efforts  which  I 
shall  bring  to  bear  on  the  matter  which  has  so  long  occu- 
pied your  attention,  I  shall  at  least  partially  discharge  my 
duty,  and  thereby  facilitate  the  performance  of  yours.  I 
shall  endeavor  to  treat  the  respectable  counsel  for  the 
managers  with  that  courtesy  which  is  his  due;  and  I 
wish  in  the  observations  which  I  shall  make,  as  far  as 
possible,  to  separate  the  counsel  from  the  case  in  which  he 
has  voluntarily  embarked.  Should  that,  however,  be  im- 
possible, if  he  has  taken  his  passage  in  a  vessel  which  is 
unseaworthy,  let  him  take  his  fate ;  I  never  can  nor  will 
permit  my  feelings,  or  my  wishes  to  prevent  me  from  a 
rigid  performance  of  duty. 

Never,  allow  me  to  say,  did  a  more  important  question 
than  that  which  now  occupies  your  attention,  employ  that 
of  a  State  or  Nation.  The  object  of  our  convention, 
on  the  question  of  national  liberty,  was  not,  in  point  of 
importance,  of  greater  interest  than  this.  The  achieve- 
ment of  liberty  itself  was  not  of  greater  moment  to  our 
fathers,  than  its  careful  preservation  is  to  us.  What,  sir, 
is  liberty,  when  it  is  not  found  on  its  march  hand  in  hand 


IMPEACHMENT  OF  JUDGE  PORTEE.  41 

with  justice?  The  moment  you  sully  the  ermine  of  jus- 
tice you  take  from  liberty  itself,  all  its  valuable  proper- 
ties— you  cease  to  live  in  a  land  of  laws,  and  have  no 
more  security  for  the  enjoyment  of  your  rights  than  the 
savage  who  roams  the  wilderness. 

To  say,  therefore,  that  I  approach  this  discussion  with 
diffidence,  is  to  say  only  what  I  am  sure  will  be  readily 
believed.  I  cannot  as  has  been  done  by  the  opposite 
counsel,  boast  that  I  represent  the  majesty  of  the  people ; 
but  I  advocate  the  majesty  of  justice — the  supremacy  of 
the  laws — without  which  the  majesty  of  the  people  is  an 
idle  tale — "  a  barren  theme,  an  airy  sceptre  grasped  in 
sleep."  It  is  not  merely  in  respect  to  the  honorable  re- 
spondent who  is  upon  his  trial,  that  this  case  is  im- 
portant ;  but  to  the  country  at  large  and  to  posterity. 
The  example  of  this  day  shall  stand  recorded  as  a  blessing 
-or  a  curse,  to  those  whom  you  now  represent,  and  to  those 
who  shall  follow  you.  If  you  regard  the  welfare  of  the 
public,  if  you  desire  the  streams  of  justice  to  flow  pure 
and  untainted,  let  your  determination  be  established  and 
placed  imperishably  upon  record,  by  your  decision  this 
day.  The  cause  is  one  of  magnitude  in  point  of  princi- 
ple. To  the  respondent  the  result  of  this  investigation  is 
a  matter  of  anxiety  ;  to  the  commonwealth  also,  although 
in  a  less  degree :  he  has  suffered  from  being  unjustly  ac- 
cused ;  the  commonwealth  suffers  in  the  suffering  of  each 
of  her  citizens.  "When  the  good  suffer  in  the  cause  of 
justice,  the  commonwealth  Cannot  be  indifferent.  The 
struggle  of  the  respondent  is  not  for  station  or  for  life — it 
is  for  reputation,  which — although  at  his  advanced  period 
of  life,  it  cannot  be  long  enjoyed — yet  is  dear  to  him 
still  as  a  parent,  descending  as  a  rich  legacy  to  his  issue. 
"  The  purest  treasure  mortal  times  afford  is  spotless  repu- 
tation." Character  may  aptly  be  compared  to  a  fair  and 
fragile  flower,  that  blooms  only  and  exhales  its  fragrance 
while  surrounded  by  a  pure  and  wholesome  and  heavenly 


42  FORENSIC   SPEECHES   OF  DAVID   PAUL   BROWN. 

atmosphere ;  the  moment  it  is  assailed  by  the  poisonous 
breath  of  calumny  it  withers,  pines  and  dies. 

The  respondent  does  not  merely  ask  at  your  hands,that 
after  a  lingering  deliberation,  he  be  cleared  of  the  accusa- 
tions ;  but  he  asks,  that  this  court  shall  join  in  a  solemn 
lustration  of  his  character.  For  months,  nay  for  years 
has  he  been  held  forth  to  the  world,  as  a  sort  of  byword 
and  reproach.  I  have  before  said,  and  I  repeat  it,  that 
this  is  not  a  prosecution  originated  by  the  House  of 
Representatives,  but  by  individuals.  That  it  is  not  insti- 
tuted upon  the  suggestions  of  public  justice,  but  for  the 
gratification  of  private  malevolence.  I  will  nevertheless 
drag  these  accusers  from  their  lurking  places,  and  exhibit 
them  to  the  merited  contempt  and  abhorrence  of  a  virtu- 
ous community.  How  salutary  often  is  the  lesson  to  be 
drawn  from  vice !  While  virtue  is  ever  open  as  she  is 
honest ;  vice  seeks  the  covert  and  concealment  and  would 
cloak  its  cloven  foot  in  modesty.  Alas  1  the  effort  never 
can  avail.  Mountains  may  cover,  seas  may  hide  the 
guilty,  but  the  arm  of  justice  shall  still  fathom  their  re- 
treat. Let  them  dive  if  they  will  into  Tartarian  dark- 
ness ;  the  radiant  eye  of  truth  shall  beam  upon  them  and 
exhibit  them,  in  all  their  naked  deformity,  to  the  indig- 
nation of  a  hissing  world  !  Such  I  will  show  you  are  the 
prime  movers  of  this  nefarious  scheme — such  are  those 
who  would  be  prosecutors  in  this  case,  but  who  are  now 
in  truth  actually  at  your  bar,  morally  at  least,  as  respond- 
ents— these  are  they  who,  by  way  of  promoting  the  equal- 
ity of  man,  would  reduce  the  respondent  from  the  height 
of  well  earned  reputation,  to  their  own  vile  level. 

Xot  to  anticipate,  sir,  I  propose  in  the  first  place  to  re- 
ply to  the  ingenious  counsel  for  the  managers;  and, 
secondly, to  call  the  attention  of  the  court  to  the  articles 
of  impeachment,  having  particular  reference  to  the  respec- 
tive charges ;  and  here  permit  rne  to  return  my  thanks  to 
that  learned  gentleman  for  the  many  compliments,  ill  de- 
served as  I  fear  most  of  them  are,  which  he  has  been 


IMPEACHMENT   OF   JUDGE   PORTER.  43 

pleased  to  bestow  upon  my  humble  self.  If  he  really  be 
that  admirer  of  eloquence  which  he  professes,  he  must  be 
truly  a  happy  man  ;  for  he  has  always  the  source  of  his  own 
gratification  within  himself.  But  to  return  to  the  notice 
of  his  arguments.  I  might  admit  every  principle  which 
he  has  advanced  as  law ;  and  still  stand  unshaken  as  the 
foundations  of  this  noble  edifice.  What  is  the  position 
he  has  assumed — touch  it  with  Ithuriel's  magic  spear,  and 
see  its  character. 

The  gentleman  has  advanced  as  one  of  his  principles — 
although  he  seemed  to  say  that  its  discussion  was  not  a 
matter  of  great  materiality  in  the  present  issue — that 
matters  might  be  impeachable  which  would  not  be  in- 
dictable. It  is  not  necessary  to  controvert  this  proposi- 
tion for ,  the  purposes  of  our  defence ;  but  I  do  protest 
against  such  a  doctrine  being  established  as  the  law  of 
the  land.  It  is  at  war  with  the  Constitution,  with  the 
law,  and  all  the  decisions  upon  the  subject.  The  case  of 
the  Commonwealth  v.  Wilson,  to  which  the  counsel  clings, 
with  as  much  desperation  as  does  the  shipwrecked  mari- 
ner to  some  char.ce-found  plank,  so  far  from  bearing  him 
out  in  his  doctrine,  defeats  him  in  it.  Judge  Duncan,  in 
fact,  lays  down  the  law,  that  the  oifence  charged  against 
the  defendant,  in  that  case,  "  was  impeachable  because  it 
was  indictable." 

He  has,  moreover,  referred  to  cases  of  impeachment  in 
England.  There  is  one  important  feature  which  distin- 
guishes the  practice  in  England  upon  these  subjects,  from 
that  which  obtains  in  this  country.  There, the  individual 
impeached,  if  guilty,  is  subjected  not  only  to  the  loss  of 
his  office,  but  to  be  punished  criminally  for  his  offence ; 
and  that,  too,  by  the  same  sentence.  Here  it  is  other- 
wise. If  the  honorable  respondent  be  guilty,  your  sen- 
tence may  deprive  him  of  his  office ;  but  it  cannot  de- 
prive him  of  his  liberty  or  inflict  upon  him  criminal 
punishment.  The  Constitution  of  the  United  States  pro- 
vides that : — u  The  impeachment  of  the  President,  Vice 


44  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

President  or  any  other  officer  of  the  United  States,  shall 
not  prevent,  in  case  of  conviction,  their  trials  before 
courts  of  criminal  law."  Con.  U.  S.,  art.  2,  sec.  IV ;  art. 
1,  sec.  Ill,  7.  The  authorities,  therefore,  drawn  from 
cases  in  England,  are  not  applicable  here;  and  they  are 
by  no  means  calculated  to  prove,  what  the  counsel  en- 
deavored to  show  by  them,  that  offences  which  are  not 
indictable  may  be  impeachable.  The  clause  in  the  con- 
stitution of  our  own  State,  which  has  been  more  than 
f>uce  referred  to,  establishes  the  contrary  ;  for  if  we  are 
to  understand  that  the  offences  therein  contemplated 
were  indictable  offences,  it  was  idle  and  silly — and,  in- 
deed, worse  than  both — to  point  out  the  mode  in  which 
the  offender  was  subsequently  to  be  tried.  "  The  party, 
whether  convicted  or  acquitted,  shall  nevertheless  be 
liable  to  indictment,  trial,  judgment  and  punishment,  ac- 
cording to  law."  But  we  are  told  that  the  Constitution 
of  Pennsylvania  does  not  mean  anything  but  a  misde- 
meanor in  office — granted.  But  what  is  a  misdemeanor  ? 
The  gentleman  says  it  signifies  misbehavior,  and  mere 
misbehavior.  According  to  his  interpretation  it  means 
any  faux  pas.  In  truth,  he  says  it  means  any  "error."  If 
this  be  the  legal  doctrine,  sir,  why  have  we  courts  of  ap- 
pellate jurisdiction  ?  To  what  purpose  or  with  what  in- 
tent have  we  established  a  Supreme  Court  ?  The  law 
knew  that  man,  even  in  his  judicial  station,  was  liable  to 
err  in  judgment,  and  therefore  provided  courts  of  error 
for  the  revision  of  judgments  of  inferior  tribunals.  But 
if  what  we  now  hear  is  law,  let  judges  beware  ;  for  every 
reversal  of  their  judgment  in  the  Supreme  Court  will 
furnish  ground  for  an  article  of  accusation  and  impeach- 
ment against  them. 

When  I  speak  of  a  legal  term  I  speak  of  it  as  a  lawyer ; 
and  as  a  lawyer  I  understand  misdemeanor  to  signify  any 
public  offence,  less  than  felony,  for  which  a  man  may  be 
indicted.  The  moment  you  give  any  other  than  a  legal 
signification  to  a  legal  term,  to  suit  the  views  of  a  rotten 


IMPEACHMENT   OF   JUDGE    PORTER.  45 

cause,  there  is  an  end  to  liberty  and  law.  We  should  be 
much  at  a  loss  to  know  to  what  length  the  doctrine  of 
the  gentleman  would  carry  us. 

Misbehavior  is  a  very  flexible  term — you  may  bend  it 
to  suit  what  you  please ;  it  varies  as  the  mind  varies,  or, 
what  is  perhaps  still  more  capricious,  as  the  manners 
change.  Suppose  any  judicial  oflicer,  in  opposition  to  the 
habits  of  the  present  day,  should  think  proper  to  retain 
his  hat  upon  his  head,  instead  of  remaining  uncovered  ; 
this  might  not  be  exactly  consistent  with  the  gentleman's 
ideas  of  good  breeding ;  this,  in  other  words,  might  be 
misbehavior,  but  it  is  not  a  misdemeanor.  It  is  not  in- 
dictable ;  and,  therefore,  is  not  impeachable.  A  misde- 
meanor Is  a  criminal  offence  ;  a  criminal  offence  proceeds 
from  a  corrupted  heart ;  sin  is  the  offspring  of  the  heart ; 
and  there  is  no  authority  to  be  found,  either  in  law  or  in 
ethics,  to  punish  a  man  for  the  mere  fallibility  of  the 
head.  Misbehavior  does  not  mean  misdemeanor.  Would 
the  commission  of  an  assault  and  battery  by  an  officer, 
during  the  tenure  of  an  office,  be  a  misdemeanor  in  office, 
for  which  he  wou'd  be  impeachable  ? 

There  is  a  difference  between  the  Constitution, of  Penn- 
sylvania and  that  of  the  United  States,  in  regard  to  the 
mode  of  removing  civil  officers.  In  the  former,  besides 
the  provision  already  stated,  that  "  all  civil  officers  shall 
l)e  liable  to  impeachment  for  any  misdemeanor  in  office," 
there  is  another  provision  which  declares  "  that  the  judges 
of  the  Supreme  Court  and  of  the  several  courts  of  Com- 
mon Pleas  shall  hold  their  offices  during  good  behavior, 
but  for  any  reasonable  cause,  which  shall  not  be  sufficient 
ground  of  impeachment*  the  Governor  may  remove  any  of 
them  on  the  address  of  two-thirds  of  each  branch  of  the 
Legislature."  In  the  latter  there  is  no  such  provision. 
Under  it  the  judges  hold  their  offices  during  good  beha- 
vior, and  all  civil  officers  are  liable  "  to  be  removed  from 
office  on  impeachment  for,  and  conviction  of,  treason, 
bribery,  or  other  high  crimes  and  misdemeanors." 


46  FORENSIC    SPEECHES   OF   DAVID    PAUL   BROWN. 

Under  this  provision  in  the  Constitution  of  Pennsyl- 
vania, the  matter  is  rendered  perfectly  plain.  What  is  the 
purpose  of  the  provision  for  removal  for  reason ahle  cause, 
which  shall  not  be  sufficient  ground  for  impeachment? 
If  the  gentleman  be  correct  in  his  views,  they  are  en- 
tirely superfluous  ;  since,  if  the  first  provision  embraces  all 
sorts  of  misbehavior,  from  the  highest  crime  to  the  merest 
peccadilloes,  there  is  nothing  upon  which  the  latter  clause 
can  act.  I  tell  you,  sir,  that  removal,  by  address,  is  the 
remedy  intended  for  the  lesser  evils,  and  impeachment  is 
that  which  is  designed  for  indictable  offences ;  and  there 
is  no  other  mode  in  which  those  constitutional  provisions 
can  be  reconciled  with  each  other,  or  with  themselves. 
The  one  is  intended  as  the  remedy  for  crime,  the  other  for 
misbehavior  not  amounting  to  crime, — such  was  the  in- 
tention of  the  framers  of  the  constitution ;  and  had  this 
not  been  their  view  of  the  subject,  they  would  have  made 
the  latter  clause  of  the  third  section,  4th  article,  read : 
"  the  party  whether  convicted  or  acquitted  shall  neverthe- 
less be  liable  to  indictment,  trial,  judgment  and  punish- 
ment according  to  law,  where  the  offences  are  indictable  in 
their  character" 

To  show  that  I  am  not  singular  in  my  views  on  this 
subject,  I  will  cite  Judge  Chase's  trial.  Not  the  argument 
of  Mr.  Nicholson,  which  is  merely  speculative  theory  ;  and 
was  unsanctioned  either  by  precedent  or  by  the  decision 
of  the  court  in  that  case :  but  the  opinion  of  Luther  Mar- 
tin, that  giant  of  the  law,  with  whom  the  court  accorded 
in  opinion.  Mr.  Martin,  pages  137-40  of  the  trial  says  "I 
shall  now  proceed  in  the  inquiry ;  for  what  can  the  Presi- 
dent, Vice  President,  or  other  civil  officers ;  and  conse- 
quently, for  what  can  a  judge,  be  impeached  ?  And  I  shall 
contend  that  it  must  be  for  an  indictable  offence.  The 
words  of  the  constitution  are,  that  '  they  shall  be  liable  to 
impeachment  for  treason,  bribery  or  other  high  crimes  and 
misdemeanors.' 

"  There  can  be  no  doubt  but  that  treason  and  bribery 


IMPEACHMENT   OF  JUDGE   PORTER.  47 

are  indictable  offences."  "We  have  only  to  inquire  then, 
what  is  meant  by  high  crimes  and  misdemeanors.  "What 
is  the  true  meaning  of  the  word  "  crime  ?"  It  is"  the  breach 
of  some  law,  which  renders  the  person,  who  violates  it, 
liable  to  punishment.  There  can  be  no  crime  committed 
where  no  such  law  is  violated.  The  honorable  gentle- 
man, to  whom  I  before  alluded,  has  cited  the  new  edition 
of  Jacob's  Law  Dictionary :  let  us  then  look  into  that 
authority,  for  the  true  meaning  of  the  word  "misde- 
meanor." He  tells  us — 

"  Misdemesnor  or  misdesmeanour,  a  crime  less  than  felony. 
The  term  misdemeanor  is  generally  used  in  contradistinction 
to  felony,  and  comprehends  all  indictable  offences,  which  do  not 
amount  to  felony,  as  perjury,  libels,  conspiracies,  assaults"  £c. 
See  4  Comm.  chap.  1,  p.  5. 

"A  crime  or  misdemeanor  "  says  BlacTcstone, "  is  an  act  com- 
mitted or  omitted  in  violation  of  a  public  law,  either  forbidding 
or  commanding  it.  This  general  definition  comprehends  both 
crimes  and  misdemeanors,  which  properly  speaking  are  mere 
synonymous  terms:  though  in  common  usage,  the  word  ' crimes' 
is  made  use  of  to  denote  such  offences  as  are  of  a  deeper  and 
more  atrocious  dye  ;  while  smaller  faults,  and  omissions  of  less 
consequence,  are  comprised  under  the  gentle  name  of  misde- 
meanor only." 

"  In  making  the  distinction  between  public  wrongs  and 
private,  between  crimes  and  misdemeanors  and  civil  in- 
juries, the  same  author  observes,  that  'public  wrongs,  or 
crimes  and  misdemeanors  are  a  breach  and  violation  of  the 
public  rights  and  duties,  due  to  the  whole  community  con- 
sidered as  a  community  in  its  social,  aggregate  capacity.' 
4  Comm.  5. 

"  Thus  it  appears,  crimes  and  misdemeanors  are  the 
violation  of  a  law,  exposing  the  person  to  punishment : 
and  are  used  in  contradistinction  to  those  breaches  of  law, 
which  are  mere  private  injuries,  and  only  entitle  the  in- 
jured to  a  civil  remedy." 

"  Blackstone's  Commentaries,  4  vol.  p.  5th  is  cited  by 


48  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

Jacob,  and  is  as  there  stated.  I  shall  not  turn  to  it.  Hale, 
in  his  pleas  of  the  crown,  volume  first,  in  his  Pr&mium, 
which  is  not  paged,  speaking  of  the  division  of  crimes, 
says, 

"  Temporal  crimes,  which  are  offences  against  the  laws  of 
this  realm,  whether  the  common  law,  or  acts  of  Parliament,  are 
divided  into  two  general  ranks  or  distributions  in  respect  to  the 
punishments  that  are  by  law  appointed  for  them,  or  in  respect 
of  their  nature  or  degree  ;  and  thus  they  may  be  divided  into 
capital  offences,  or  offences  only  criminal,  or  rather  and  more 
properly  into  felonies  and  misdemeanors,  and  the  same  distri- 
bution is  to  be  made  touching  misdemeanors,  namely,  they  are 
such  as  are  so  by  the  common  law,  or  such  as  are  specially 
made  punishable  as  misdemeanors  by  acts  of  Parliament '." 

"  Thus  then  it  appears,  that  crimes  and  misdemeanors 
are  generally  used  as  synonymous  expressions ;  except 
that 'crimes'  is  a  word  frequently  used  for  higher  offences. 
But  while  I  contend  that  a  judge  cannot  be  impeached, 
except  for  a  crime  or  misdemeanor,  I  also  contend  that 
there  are  many  crimes  and  misdemeanors  for  which  a 
judge  ought  not  to  be  impeached,  unless  immediately 
relating  to  his  judicial  conduct.  Let  us  suppose  that  a 
judge  provoked  by  insolence,  should  strike  a  person :  this 
certainly  would  be  an  indictable,  but  not  an  impeachable 
offence.  The  offence  for  which  a  judge  is  liable  to  im- 
peachment, must  not  only  be  a  crime  or  misdemeanor  but 
a  high  crime  or  misdemeanor.  The  word  '  crime '  as 
distinguished  from  misdemeanor,  is  applied  to  offences  of 
a  more  aggravated  nature.  The  word  '  high,'  therefore, 
must  certainly  equally  apply  to  misdemeanors  and  to 
crimes.  Nay,  sir,  I  am  ready  to  go  further,  and  say,  there 
may  be  instances  of  very  high  crimes  and  misdemeanors, 
for  which  an  officer  ought  not  to  be  impeached,  and  re- 
moved from  office.  The  crimes  ought  to  be  such  as  relate 
to  his  office,  or  which  tend  to  cover  the  person,  who 
committed  them,  with  turpitude  and  infamy:  such  as 
show  there  can  be  no  dependence  on  that  integrity  and 


IMPEACHMENT   OF    JUDGE    PORTER.  49 

honor  which  will  secure  the  performance  of  his  official 
duties." 

"  But  we  have  been  told,  and  the  authority  of  the 
State  of  Pennsylvania  has  been  cited  by  one  honorable 
manager  (Mr.  Eodney),  in  support  of  the  position ;  that 
a  judge  may  be  impeached,  convicted,  and  removed  from 
office,  for  that  which  is  not  indictable — for  that  which  is 
not  a  violation  of  any  law." 

"  "What,  sir,  can  a  judge  be  impeached  and  deprived  of 
office,  when  he  has  done  nothing  which  the  laws  of  his 
country  prohibited  ?  Is  not  deprivation  of  office  a  pun- 
ishment? can  there  be  punishment  inflicted  where  there 
is  no  crime  ?  Suppose  the  House  of  Kepresentatives  to 
impeach,  for  conduct  not  criminal;  the  Senate  to  convict ; 
doth  that  change  the  law  ?  No,  the  law  can  only  be 
changed  by  a  bill  brought  forward  by  one  House  in  a  cer- 
tain manner;  assented  to  by  the  other  ;  and  approved  by  the 
President.  Impeachment  and  conviction  cannot  change 
the  law,  and  make  that  punishable  which  was  not  before 
criminal.'" 

In  considering  the  term  "high"  used  in  the  Constitu- 
tion of  the  United  States,  the  gentleman  seemed  at  a  loss 
to  understand  its  meaning.  It  is  a  term  used  by  sovereign 
governments ;  and  its  legal  effect  is  very  satisfactorily 
explained  in  the  extract  which  I  have  just  read.  The 
gentleman  has  suggested  the  case  of  "fatuity."  It  was 
an  unfortunate  case.  I  meet  him  on  his  own  grounds, 
and  I  deny  everything  like  authority  under  the  laws  to 
proceed  in  such  cases  by  impeachment ;  for  errors  of  the 
head  must  be  remedied  by  "address,"  when  they  will  be 
probably  destructive  in  their  consequences.  Impeach- 
ment rests  upon  the  errors  of  the  heart  alone ;  and  the 
case  from  10th  Sergeant  &  Rawle,  instead  of  overthrow- 
ing, supports  this  idea.  Judge  Duncan  did  not  therein 
determine,  as  he  could  not  have  determined,  that  the 
offence  was  not  impeachable.  He  merely  decided  that  it 

was  indictable. 

4 


50  FORENSIC    SPEECHES   OP   DAVID    PAUL    BROWN. 

The  case  of  Judge  Pickering,  cited,  is  a  mere  abstract 
of  the  proceedings  referred  to  in  an  elementary  treatise — 
we  have  not  the  details,  nor  if  we  had,  could  the  decision 
in  the  Senate  of  the  United  States,  under  the  Constitu- 
tion of  the  United  States,  alter  the  law  or  the  Constitu- 
tion of  Pennsylvania. 

The  same  observation — that  they  are  mere  abstracts — 
taken  in  connection  with  the  observations  heretofore 
made  on  the  authority  of  British  precedents  in  cases  of 
this  kind,  will  apply  to  the  cases  of  Lord  Bacon,  the 
Duke  of  Buckingham  and  Lord  Finch,  with  this  answer 
to  the  gentleman's  question  ;  that  bribery  and  the  corrupt 
purchase  and  sale  of  offices,  charged  against  Lord  Bacon 
and  the  Duke  of  Buckingham,  a  re  indictable  offences.  • 

But  the  opposite  counsel  infers  from  the  case  in  10th 
Sergeant  &  Rawle,  that  the  offences  contained  in  these 
articles  of  impeachment,~or  the  greater  part  of  them  at 
least,  are  indictable  ;  and  consequently  impeachable : 
which  leads  me  to  the  consideration  of  this,  his  second 
position.  In  reply  to  that,  I  in  the  first  place  say,  that 
the  two  positions  of  the  counsel  are  mutually  destruc- 
tive, or  at  all  events  imply  a  want  of  confidence  in  the 
mind  that  suggested  them ;  for,  if  the  offences  are  im- 
peachable, though  not  indictable,  why  occupy  your  time 
in  the  attempt  to  show  that  these  offences  charged,  as 
contended,  are  indictable  ?  Why  engage  in  a  laborious 
effort  to  show  that,  which  is  alone  necessary  to  be  shown, 
in  case  the  law  were  otherwise. 

Let  us  now  turn  our  attention  to  the  remarks  of  the 
counsel,  brief  as  they  were,  upon  the  different  charges,  in 
the  order  in  which  they  are  exhibited.  After  all  the  dis- 
play which  was  made  on  the  other  side  of  professed  can- 
dor and  impartiality  and  frankness,  has  a  single  charge 
been  abandoned,  until  we  bearded  the  prosecutors  in 
their  den  ?  True,  when  we  were  calling  our  witness  to 
the  bar,  then  and  not  until  then,  was  the  8th  article 
abandoned,  and  it  is  the  only  one  which  has  been  with- 


IMPEACHMENT   OF   JUDGE   PORTER.  51 

drawn.  The  12th  article,  although  not  urged,  has  not 
been  abandoned.  But,  sir,  as  to  the  1st  article  which  we 
have  swept  from  its  foundation,  the  counsel  passes  over  it 
simply  by  saying  that  he  would  not  rely  upon  any  par- 
ticular law  to  support  it,  but  upon  the  law  generally. 
This  reminds  me  of  what  a  learned  gentleman  once  called 
"  amplifying  to  a  point."  If  I  understand  the  rules  laid 
down  by  the  honorable  court  for  the  government  of  its 
proceedings ;  upon  the  conclusion  of  the  testimony,  the 
argument  upon  the  part  of  the  commonwealth  was  first 
to  be  made,  and  then  the  argument  on  the  part  of  the 
respondent ;  and  in  conclusion,  the  reply  on  behalf  of  the 
commonwealth.  Under  this  view  of  the  subject,  I  was 
entitled  surely,  to  the  gentleman's  argument  on  the  case, 
in  order  to  enable  me  to  answer,  if  necessary.  He  has 
the  advantage  of  the  conclusion,  and  the  reason  why  he 
was  required  to  sum  up  first,  is,  that  he  may  lay  down 
the  legal  principles  at  least,  upon  which  he  rests  his  case, 
that  they  may  be  open  to  the  observation  of  the  succeed- 
ing counsel.  I  can  tight  a  wind-mill,  sir,  because  it  is 
visible  and  tangible  ;  but  I  cannot  fight  the  wind  by 
which  it  is  driven.  If,  however,  upon  the  present  occa- 
sion, he  knows  no  particular  principle  upon  which  he  can 
rest  this  part  of  a  sickly  cause,  I  hope  I  shall  be  able  to 
satisfy  even  him,  that  there  are  many  principles  upon 
which  it  can  be  resisted. 

In  reference  to  the  second  article,  we  are  told  that  the 
rights  of  personal  liberty  are  sacred.  That  the  judge 
had  no  right  or  authority  to  arrest  Beidleman,  Young 
and  Haberacker ;  and  that  his  having  so  done,  was  an 
official  misdemeanor.  I  am  not  now  discussing  these  ar- 
ticles. I  am  merely  glancing  at  them  in  a  hasty  review 
of  the  gentleman's  arguments.  But  for  the  present,  my 
answer  is,  that  there  never  was  any  arrest.  If,  instead 
of  reading  authority  upon  authority,  to  show  what  is  a 
legal,  and  what  an  illegal  arrest;  the  gentleman  had  es- 
tablished that  there  had  been  au  arrest,  it  would  have 


52  FORENSIC    SPEECHES    OF    DAVID    PAUL    BROWN. 

been  much  more  satisfactory.  Everybody  who  invites  a 
gentleman  to  a  party,  would  be  guilty  of  an  arrest,  ac- 
cording to  the  counsel's  new  version  of  the  law.  But, 
sir,  it  is  abusing  the  time  and  patience  of  the  court,  to 
dwell  longer  upon  it ;  and  I  shall  pass  from  it,  observing 
that  the  course  of  the  opposite  counsel  reminds  me  very 
strongly  of  a  circumstance  which  is  alleged  to  have  taken 
place  in  the  time  of  Charles  II.  That  merry  monarch,  it 
is  said,  with  a  view  of  selecting  one  of  the  wisest  rnen  in 
his  kingdom  for  some  special  purpose,  called  together 
most  of  the  learned  of  the  realm,  and  proposed  to  them 
this  question,  "  What  is  the  reason,  that  in  placing  a  fish 
in  a  bucket  full  of  water,  the  water  still  will  not  over- 
flow ?"  A  variety  of  reasons  were  suggested  by  the  can- 
didates for  royal  favor,  all  very  ingenious,  no  doubt,  until 
at  last  the  King  put  the  inquiry  to  a  sagacious  Scot,  who 
replied,  "  I  deny  the  fact,  your  Highness  ;"  and  the  Scot 
was  right.  I  will  leave  it  to  my  friend  on  the  other  side 
of  the  question,  and  the  members  of  this  court,  to  apply 
the  story.  I  deny  the  fact,  as  alleged  by  the  opposite 
counsel,  and  until  it  is  established,  time  is  too  precious  to 
discuss  the  empty  theory  alone. 

As  to  the  third  and  fourth  articles,  which  have  been 
jumbled  together  in  their  consideration  by  the  counsel; 
and  in  relation  to  which,  we  have  had  an  ingenious  dis- 
sertation upon  the  ancient  doctrine  of  theft-bote  ;  it  is  not 
necessary  for  me  to  say  more  at  this  time,  than  that  the 
fact  of  compounding,  or  attempting  to  compound  a  felony, 
is  not  made  out.  In  one  of  the  articles,  he  is  charged  with 
attempting  to  induce  a  magistrate  to  violate  his  duty. 
Although  this  is  also  wholly  unsupported  by  proof,  it 
would  seem  that  in  view  of  the  prosecution,  there  is  no 
difference  between  the  act  itself,  and  the.  attempt  to  do 
the  act. 

The  law  in  regard  to  these  matters  is  well  settled.  It 
is  no  subject  of  dispute.  Every  tyro  knows  what  consti- 
tutes larceny,  and  what  is  the  meaning  of  compounding  a 


IMPEACHMENT   OF  JUDGE   PORTER.  53 

felony.  And  every  man  who  contemplates  with  an  un- 
jaimdiced  eye,  the  features  of  this  case,  so  far  as  relates 
to  those  articles,  must  at  once  perceive  that  the  case  is 
not  brought  within  the  provisions  of  the  law.  If  all  the 
facts  alleged  in  those  charges  were  true,  it  would  not 
avail  the  prosecution.  It  is  therefore  unnecessary  for  me, 
untrue  as  they  are  in  all  material  points,  to  attempt  es- 
tablishing the  invalidity  of  this  portion  of  the  accusation. 

All  the  remaining  charges  appear  to  me  to  be  similarly 
circumstanced ;  either  the  facts,  if  true,  do  not  support 
the  conclusion  attempted  to  be  drawn  from  them ;  or  the 
facts  alleged  are  untrue,  and  of  course  the  conclusion  falls. 

This  case  is  said  by  the  opposite  counsel  to  be  in  the 
nature  of  a  criminal  prosecution.  What  does  this  mean  ? 
I  understand  it  to  signify  that  it  is  a  case  in  which  the 
same  principles  and  rules  must  govern,  as  in  cases  of  in- 
dictments at  common  law.  I  ask  for  nothing  more.  For 
this  doctrine  is  in  the  teeth  of  three-fourths  of  the  argu- 
ments to  which  you  have  listened  this  morning.  Suppose 
the  case  of  an  indictment  for  larceny,  would  it  not  be 
necessary  that  the  word  feloniously  should  be  introduced  ; 
or  could  the  prosecuting  counsel  succeed  upon  merely 
proving  that  the  goods  were  taken  ?  Certainly  not.  If 
6O,  any  member  of  this  honorable  court  may  be  convicted 
of  larceny,  either  for  taking  his  own  hat,  or  that  of 
another,  through  mistake.  It  is  essentially  necessary 
that  the  indictment  should  set  forth  the  facts,  and  should 
set  forth  the  motive;  and  in  returning  your  verdict,  you 
cannot  find  the  one  without  the  other.  I  lay  it  down 
to  be  a  principle,  which  alike  governs  human  and  divine 
tribunals ;  that  no  man  can  be  guilty  of  a  crime,  where  it 
does  not  clearly  appear,  that  the  act  from  which  the  crime 
is  attempted  to  be  inferred,  was  intentionally  committed. 
In  the  present  case,  therefore,  it  is  not  enough  that  facts 
should  be  found,  although  there  we  are  thrice  armed;  but 
you  must  find  the  legal  conclusion  also,  which  goes  to  the 
establishment  of  corruption  of  heart.  These  remarks  are 


54  FORENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

particularly  applicable  to  the  case  of  Hays  v.  Bellas,  con- 
tained in  the  sixth  article,  which  imputes  forgery  to  the 
honorable  respondent.  But  as  it  is  my  design  fully  to 
discuss  these  articles  in  their  order,  I  will  not  now  occupy 
the  time  of  this  honorable  court,  in  more  particularly  re- 
ferring to  them.  The  system  which  I  have  prescribed  to 
myself,  and  which  I  now  merely  mention  to  facilitate  the 
comprehension  of  my  views,  is  this:  first,  I  shall  con- 
sider the  case,  as  exhibited  by  the  prosecution ;  and  sec- 
on<Hy,  by  the  defence.  Under  the  former  of  those  two 
heads,  I  shall  advert  to  the  charges  as  contained  in  the 
articles,  and  to  the  charges  as  established  by  the  proof. 
Under  the  latter  general  division,  I  shall  refer  to  the  an- 
swers of  the  respondent,  and  to  the  evidence  by  which 
they  are  supported. 

The  first  article,  charges  the  respondent  with  official  im- 
propriety in  the  case  from  Berks  county,  of  Seitzinger  v. 
Zeller.  And  here,  permit  me  to  observe  one  circumstance 
in  this  prosecution  which  is  not  a  little  remarkable  ;  and 
which  is  calculated  to  excite  feelings  little  short  of  super- 
stition ;  and  it  is  this :  the  first  name  which  ought  to 
have  been  uttered  in  this  prosecution ;  that  of  him  who 
has  been  the  prime  mover  of  all  this  mischief;  he  who, 
to  use  a  simile  borrowed  from  his  own  vile  vocation,  has 
shuffled  every  other  witness  in  turn  to  the  top  of  the  pack, 
and  with  his  characteristic  modesty  has  kept  himself  on 
the  back  ground  ;  I  say,  this  name  is — after  a  ten  days' 
investigation — the  last  word  uttered  by  the  last  of 
the  witnesses  examined  in  the  cause — JACOB  W.  SEETZ- 
INGER!  ! !  He,  sir,  who  battened  on  the  public  for  weeks 
during  the  last  session  ;  he  who  has  regularly  been  called 
every  day  since  this  court  has  been  in  session,  and  regu- 
larly answered  to  his  name ;  he,  sir,  who  hired  counsel  be- 
fore the  committee  of  investigation,  and  who,  it  would 
seem,  was  to  carry  counsel,  committee,  commonwealth, 
and  all,  on  his  Atlantean  shoulders  ;  who  is  alleged  to  be 
particularly  interested  in  the  matters  referred  to  •  in  the 


IMPEACHMENT   OF   JUDGE    PORTER.  55 

first  charge,  never  condescends  to  appear  in  person  as  a 
witness : — Nay,  so  successfully  does  he  seek  to  conceal 
himself  under  the  mantle  of  ill  affected  modesty ;  that  it 
is  not  until  the  last  moment  of  the  testimony,  and  then, 
not  without  great  reluctance  on  the  part  of  his  friend  and 
confidant  (Mr.  Bellas),  that  we  are  able  to  identify  him 
with  this  nefarious  plot — a  plot  against  the  respondent 
and  the  State.  Here  then,  I  arraign  you — Jacob  "W. 
Seitzinger,  Hugh  Ross,  and  Henry  Jarrett — as  public 
conspirators ;  the  first,  as  principal,  the  two  last,  as 
accessaries  before  the  fact. 

Let  me,  without  proceeding  further  upon  so  odious  a 
theme,  direct  the  attention  of  this  honorable  court,  to 
the  more  particular  subject  of  inquiry. 

The  first  article  after  setting  forth  the  matters  of  com- 
plaint, concludes:  "  Thus  wilfully  and  corruptly  denying 
a  citizen  the  right  of  having  justice  administered  to  him 
without  sale,  denial  or  delay."  These  are  very  pretty, 
specious,  high  sounding  words,  picked  out  of  Purdon's 
Digest  for  the  occasion,  to  round  off  this  elegant  and 
classically  written  specimen  of  legal  and  literary  erudi- 
tion. "  Sale,"  of  what  ?  "  Barter !  "  for  what  ?  I  should 
like,  soberly  to  inquire,  what  has  appeared  in  the  whole 
of  the  evidence,  like  inducement  to  the  respondent  to  act 
otherwise  than  fairly  and  honestly  ?  I  agree,  if  you 
please — and  it  is  according  all  that  can  be  required  at  my 
hands — that  sacrifices  are  frequently  made  by  men  in 
elevated  situations,  to  objects  altogether  insignificant  and 
disproportionate  in  point  of  consequence  or  character. 
Doctor  Dodd,  we  are  told,  surrendered  all  regard  for  his 
character,  his  family,  his  friends  ;  and  meanly  consented 
to  become  a  worshipper  at  the  shrine  of  Mammon,  "  that 
least  erected  spirit  that  fell ;"  Lord  Chancellor  Bacon, 
"  the  greatest,  wisest,  meanest  of  mankind,"  sacrificed  the 
mighty  space  of  his  large  honors  "  for  so  much  gold  as 
might  be  grasped  thus!" — Nay,  not  to  confine  ourselves 
to  the  corrupted  currents  of  more  moderate  times ;  Esau 


56  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN., 

sold  his  birth-right  for  a  mess  of  pottage — and  to  sum  up 
all,  Judas,  the  traitor  Judas,  basely  bartered  the  Saviour 
of  the  world  for  "thirty  pieces."  But  this  it  seems — in 
opposition  to  everything  like  reason,  like  reputation,  like 
example — is  a  sale  forsooth,  without  purchaser  or  price. 
Is  it,  or  can  it  be  supposed,  that  the  honorable  respondent, 
whose  character  for  honesty  and  integrity  has  been  em- 
phatically admitted  to  be  without  spot  and  without 
blemish,  would  immolate  himself,  destroy  his  reputation, 
and  entail  infamy  on  his  family,  without  motive — with- 
out inducement? 

Is  there  "  denial  ?  "  why,  the  very  complaint  is,  that 
he  adjudged  the  cause.  Is  his  judgment  erroneous? — 
why  has  it  not  been  reviewed  in  the  Superior  Court.  Has 
there  been  "  delay  ?" — the  objection  is,  that  he  would  not 
delay.  Let  these  terms  then  be  wafted  on  the  idle  air  for 
proper  company.  But,  take  every  fact  alleged  in  the 
article  to  be  fully  sustained  by  proof;  admit  it  to  its  ut- 
most extent,  yet  the  prosecuting  counsel  could  not  sus- 
tain it  as  matter  of  impeachment.  As  well  might  he  at- 
tempt to  swim  with  fins  of  lead,  or  hew  down  oak  with 
rushes.  (Here  Mr.  B.  read  the  whole  article.)  He  never 
could  have  hoped  to  sustain  it — the  article  in  its  composi- 
tion is  about  as  legal  as  it  is  classical.  There  is  no  offence 
or  impropriety  alleged,  which  has  a  particle  of  truth  in 
it ;  and  if  it  were  all  true,  I  care  not. 

I  admit  that  he  presided  on  the  argument,  upon  the 
exceptions  filed  to  his  report,  in  the  case  of  Seitzinger  v. 
Zeller.  I  admit  that  he  had  previously,  with  reluctance, 
consented  to  serve  as  a  referee ;  and  that  he  reported 
every  farthing  that  was  due  to  the  plaintiff'.  I  deny 
that  he  was  requested  to  leave  the  bench  when  the 
argument  came  on.  Mr.  Baird  could  not  say  whether 
the  expression  of  Mr.  Biddle  "  that  Judge  Porter  could 
not  sit,  or  ought  not  to  sit,"  was  intended  for  the  ear  of 
the  judge,  or  a  mere  intimation  to  himself.  Mr.  Smith, 
Mr.  Hayes,  Gen.  Addams,  and  the  two  associates  did  not 


IMPEACHMENT    OF   JUDGE    PORTER.  57 

Lear  it.  Mr.  Biddle,  it  is  true,  says,  "  I  mentioned  to 
Judge  Porter  that  it  was  our  wish  that  he  should  not 
sit ; "  and  "  I  have  every  reason  to  believe  he  heard  it." 
But,  sir,  he  is  mistaken  in  saying  he  addressed  the 
observation  to  Judge  Porter ;  or  why  would  not  some 
one  else  have  heard  it.  If,  however,  he  did;  his  enuncia- 
tion at  best  is  indistinct,  and  there  is  every  reason  to  pre- 
sume that  it  was  not  heard  by  the  respondent.  But,  if 
it  had  been  distinctly  and  openly  addressed  to  the  judge, 
and  as  distinctly  heard  by  him,  I  care  not  a  feather.  It 
cannot  affect  or  injure  the  respondent.  Has  it  come  to 
this,  that  because  one  of  the  parties,  or  his  counsel,  re- 
quests a  judge,  whose  integrity  and  stern  justice  do  not 
suit  his  views,  to  leave  the  bench,  that  the  judge  is  bound 
submissively  to  comply?  Are  your  judges  to  be  made 
mere  puppets,  to  be  shoved  on  or  off  the  scenes,  at  the 
will  of  the  counsel.  Sir,  had  he  submitted  to  this,  he 
would  have  been  culpable.  He  would  have  abandoned 
his  duty.  He  then  would  not  have  been  "  administering 
justice  without  denial  or  delay."  He  was  not  bound  to 
go ;  he  was  bound  by  the  law,  and  by  the  obligation  of 
his  office  which  he  has  sworn  to  perform  with  fidelity, 
to  remain  on  the  bench  and  fearlessly  discharge  his  duty. 
But  it  is  alleged,  that  the  judge  refused  to  produce  his 
calculations,  on  which  he  founded  his  report.  Suppose  he 
had;  no  injury  was  sustained  by  it — the  exceptions  to 
the  report,  by  the  rules  of  the  court,  must  have  been 
filed  within  four  days  after  the  reading  of  the  report. 
The  report  in  this  case  was  filed,  as  appears  by  the  record, 
upon  the  15th  day  of  November,  1823.  The  exceptions 
were  filed  upon  the  17th  day  of  the  same  month.  The 
judge  was  asked  for  his  calculations  at  August  Term, 
1824.  So  that  the  exceptions  had  to  stand  on  their  own 
merits ;  and  could  not  be  aided  or  amended  by  any  state- 
ments or  calculations  produced  nine  months  afterwards. 
The  exceptions  were  dismissed  because  thej'  were  defec- 
tive and  insufficient. 


58  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

The  respondent  did  not,  however,  refuse  to  give  his 
calculations.  Although  from  having  been  present  and 
concerned  in  the  cause,  I  might,  with  the  chaste  poet  of 
Mantua,  say :  "  all  which  I  saw,  and  part  of  which  I 
was  ; "  yet  I  will  take  the  evidence  adduced  before  you, 
as  it  essentially  corresponds  with  u»y  own  recollections. 
Mr.  Biddle  does  not  pretend  to  say,  that  the  judge  re- 
fused to  give  his  calculations  ;  but  that  he  alleged  that 
he  had  not  kept  any,  or  had  none.  Mr.  Baird  does  not 
say  there  was  any  refusal  to  explain.  Mr.  Hays  says, 
that  "  the  judge  stated  he  had  not  preserved  his  cal- 
culations, that  he  had  made  them  on  slips  or  pieces  of 
paper  which  he  had  not  kept,  but  that  he  was  ready  to  state 
the  grounds  of  his  report."  Judge  Witman  says  the  same 
in  effect.  Judge  Schneider  says  he  appeared  willing  to 
give  them  every  satisfaction  ;  and  Gen.  Addams  says, 
that  when  Mr.  Baird  said  they  would  be  under  the  neces- 
sity of  examining  the  judge,  he  said  he  was  very  willing 
to  be  examined. 

When  the  judge  came  upon  the  bench,  he  ceased  to  be 
a  referee.  He  was  then  a  judge  of  the  court:  bound  to 
decide  all  questions  that  legally  came  before  him  in  his 
judicial  character,  in  which  he  was  not  personally 
interested — or  to  the  parties  to  which  he  was  not 
connected  by  ties  of  affinity  or  consanguinity.  The  case 
before  the  court,  to  which  I  have  been  referring,  was  not 
one  of  those  exceptions  ;  and  consequently  the  respondent 
was  bound  to  sit,  and  to  adjudicate  upon  it.  When  a 
judge  of  the  Supreme  Court  sits  at  nisi  prius;  and  tries 
a  cause ;  and  a  motion  is  made  for  a  new  trial ;  and  the 
case  comes  on  to  be  argued  in  bane,  the  judge  always 
sits  on  the  argument.  Nay,  more,  he  always  furnishes 
the  facts  on  which  the  argument  is  founded.  Such  too, 
was  the  practice  on  motions  for  new  trials  and  appeals, 
under  the  old  Circuit  Court  system.  But  the  respondent 
here  had  an  additional  necessity  imposed  upon  him  to  sit, 
from  the  circumstance  of  his  associate  (Judge  Witman) 


IMPEACHMENT    OF   JUDGE   PORTER.  59 

being  the  father-in-law  of  Daniel  II.  Otto  (one  of  the  ac- 
tive creditors  in  taking  defence),  who  had  told  him,  that 
in  consequence  of  that  relationship,  he  could  not  sit  upon 
the  argument. 

"With  regard  to  the  institution  of  these  proceedings 
against  the  respondent,  it  would  seem  that  the  charges 
had  been  slumbering  seven  or  eight  years  in  the  tomb  of 
the  Capulets.  Hugh  Ross  had  taken  notes  (of  that,  how- 
ever, more  anon),  but  I  am  glad  to  find  that  to  him — the 
obliquity  of  whose  moral  vision  is  so  notorious — the  re- 
spondent seemed  to  act  with  im propriety.  For  virtue 
would  not  be  virtue  if  it  received  the  approbation  of  vice. 
But,  why  do  not  these  charges  slumber  still  ?  The  prob- 
lem is  solved — Seitzinger  had  obtained  a  judgment  for 
five  or  six  hundred  dollars  more  than  was  due  him,  to 
the  prejudice  of  the  honest  creditors  of  Zellers.  This 
judgment  the  respondent  reduced  to  what  was  honestly  due 
him,  to  wit:  $576.63,  instead  of  $1,100  claimed.  Seitzin- 
ger felt  his  pocket  touched  ;  he  breathes  revenge ;  he 
finds  some  kindred  spirits  willing,  like  himself,  to  sacri- 
fice the  respondent  at  an  auto  de  fe.  He  communes  and 
consults  with  Bellas,  and  with  him  impeaches  the  respon- 
dent in  his  absence  before  the  committee  last  year ;  and 
then  gets  the  worthies  from  Northampton  and  Lehigh' 
to  join  in  with  him ;  yet  he  does  not  now  come  for- 
ward to  testify  before  you.  He  has  looked  within,  and 
fearing  that  if  he  made  his  appearance,  all  that  there 
rose  to  his  own  view  would  be  exposed  to  the  world,  he 
shrunk  from  the  spectacle. 

I  submit  to  this  honorable  court,  that  this  is  a  trial 
between  the  justice  of  the  land,  and  those  who  would 
wield  the  thunders  of  the  commonwealth  for  their  own 
vile  purposes;  and  I  leave  this  article  thus,  with  a  full 
conviction  that  there  can  be  no  difficulty  in  your  decision 
upon  it. 

The  second  article  is  worse,  if  worse  can  be,  than  the 
first.  Can  I  have  read  rightly  ?  Is  it  seriously  true,  that 


60  FORENSIC    SPEECHES    OF    DAVID    PAUL    BROWN. 

the  respondent  is  impugned,  nay,  arraigned,  for  a  high 
crime  and  misdemeanor — for  doing,  what?  For  repri- 
manding men  who  had  violated  the  law  in  the  worst 
form.  But,  says  the  counsel,  the  arrest, and  not  the  repri- 
mand,is  the  offence — and  is  it  so?  What  says  the  article, 
"  that  the  said  Judge  Porter,  sitting  on  the  bench  in  the 
court,  did  reprimand  and  insult,  &c.,  for  suffering  gambling 
in  their  houssc."  What  said  the  counsel  himself  but  just 
now.  He  said  "these  persons  were  brought  up  before  the 
court  in  public ;  and  exposed  to  ridicule  and  contempt ; 
and  made  a  laughing  stock  to  the  whole  country."  And 
is  this  honorable  court  to  fight  the  battles  of  Beidleman — 
Young — Haberacker — Seitzinger,  and  every  other  gambler 
in  the  county  or  commonwealth  ?  Suppose  the  respondent 
had  termed  them  "villains;"  he  would  have  but  called 
them  by  their  own  right  names ;  but  he  never  used  the 
term.  Beidleman  alone,  was  examined  as  to  this  part  of 
the  charge.  He  speaks  and  understands  the  English  lan- 
guage but  imperfectly,  and  could  very  readily  misappre- 
hend the  expressions  used  to  him ;  more  especially  as  his 
conscience  told  him  that  the  expression  was  applicable. 
He  was  asked  before  this  court,  whether,at  the  time,  he 
suffered  gambling  in  his  house  ?  And  he  answered  not, 
but  shielded  himself  under  the  protection  which  the 
prosecution  claimed  for  him,  from  proclaiming  his  own 
infamy,  guilt  and  disgrace.  So,  sir,  when  called  before 
the  Court  of  Quarter  Session?  of  Lehigh  county,  and 
informed  of  the  complaint  which  had  been  made  against 
him,  he  denied  them  not ;  but  by  his  conduct,  admitted 
that  he  had  so  offended.  Col.  Hutter  and  Judge  Fogel, 
who  were  both  present,  and  saw  and  heard  everything 
which  passed,  tell  you  that  the  word  "  villains "  or 
"  scoundrels,"  was  not  used ;  and  they  add,  that  it  could 
not  have  been  used,  or  they,  would  have  observed  it — that 
they  never  heard  such  words  from  Judge  Porter's  lips. 

Will  you  believe  the  one  biassed  and  prejudiced  wit- 
ness, and  whistle  the   others   to  the   wind  ?     Does   the 


IMPEACHMENT   OF   JUDGE    PORTER.  61 

Senate  sit  here  to  protect  gamblers— the  vilest  and  most 
worthless  depredators  that  infest  and  prey  upon  society  ? 
Is  this  parent  of  all  vice  to  receive  sanction  and  encour- 
agement at  your  hands?  Are  the  gamblers  of  the  land 
to  assemble  and  hold  a  jubilee  on  the  success  of  this 
cause?  Are  ye  fathers ?  Have  ye  children?  Do  ye  owe 
it  to  them,  do  ye  owe  it  to  your  country  to  protect  gamb- 
ling ?  And  can  it  be,  that  the  Senate  of  Pennsylvania, 
sitting  in  sober  judgment,  as  the  highest  court  of  judica- 
ture known  to  the  laws,  is  seriously  called  on  to  do  this  ? 
It  is  monstrous,  I  cau  scarcely  have  patience  to  endure 
the  thought  of  it. 

Are  not  your  public  functionaries,  your  judges,  to  be 
administrators  of  the  law  ?  Are  they  not  called  upon  by 
every  principle  of  duty,  human  and  divine,  to  be  a  terror 
unto  evil  doers  ?  Is  it  not  in  proof  to  you,  that  the  vice 
of  gambling  was  prevalent,  even  to  an  alarming  degree, 
at  Allentown  ;  at  the  times  referred  to?  And  was  it  not 
necessary  for  those,sworn  to  administer  the  law,  to  inter- 
fere and  save  the  morals  of  the  country  from  prostitution  ? 
Aye ;  but  says  the  counsel,  he  should  have  received  infor- 
mation on  oath,  issued  a  warrant,  and  had  them,  indicted. 
This  mode  of  proceeding  would  be  less  effectual  than  the 
one  adopted.  Who  was  there  willing  to  take  upon  him- 
self the  character,  at  all  times  odious,  of  an  informer? 
The  venerable  Judge  Hartzel,  now  no  more,  seemed  to 
shrink  from  it — although  one  of  the  judges  of  the  court — 
because  they  were  his  neighbors.  Should  they  have 
selected,  or  sent  for  one  of  the  clan  ;  he  might  have  either 
not  sworn  the  truth,  or  like  the  culprit  here,  stand  on  his 
privilege.  Sir,  the  stand  which  the  respondent  took  on 
the  side  of  morals  and  virtue,  was  worthy  of  himself,  and 
of  his  own  fearless  and  exemplary  character;  and  I  should 
have  thought  less  of  him  than  I  do,  had  he  failed  in  doing 
what  he  has  done. 

The  simple  facts  in  regard  to  this  article,  are,  that 
gambling  prevailed  openly  and  publicly  in  Allentown. 


62  FORENSIC   SPEECHES   OP   DAVID   PAUL    BROWN. 

That  the  vice  was  spreading  -its  devastations  over  the 
place ;  the  widow  and  orphan  felt  it ;  the  stranger,  setting 
his  foot  in  the  place,  was  liable  to  become  the  victim  of 
the  sharpers  who  infested  it.  The  tavern  keepers,  licensed 
by  the  court,  and  necessarily  under  its  control,  gave  it 
countenance  and  support ;  in  violation  of  the  law  and 
morality.  The  respondent  interposed  his  authority,  and 
having  desired  those  most  notorious  for  their  transgres- 
sions, to  corne  before  the  court,  they  voluntarily  came 
forward ;  and  the  respondent  openly  and  publicly  in- 
formed them  of  the  complaints  which  had  come  to  his  ears, 
the  truth  of  which  they  admitted  ;  and  he  then  cautioned 
them  to  beware  how  they  again  transgressed  ;  for  if  com- 
plaints should  be  again  preferred,  they  should  be  punished 
with  all  the  severity  of  the  law. 

If  the  respondent  be  censured  for  conduct  like  this, 
instead  of  injuring  him  in  the  estimation  of  the  only  part 
of  mankind  whose  estimation  is  worth  having — the  virtu- 
ous and  the  good — it  will  be  the  brightest  gem  in  his  coro- 
net. And  if  the  lawgivers  of  our  land ;  if  the  highest 
and  most  dignified  tribunal  of  the  commonwealth,  shall 
think  this  a  matter  of  accusation  and  of  crime;  why  then 
you  may  as  well  turn  your  hall  into  a  gambling  den;  ap- 
propriate your  sacred  desks  to  faro  banks;  and  let  jus- 
tice depend  on  the  hazard  of  the  die. 

In  the  third  article  of  impeachment,  it  is  charged  against 
the  respondent,  that  he  interfered  to  screen  a  culprit  from 
justice;  and  endeavored  to  induce  a  judicial  officer  to  vio- 
late his  duty,in  her  favor.  But  the  facts  are  not  proved, 
to  sustain  any  part  of  this  allegation.  As  to  the  evidence 
of  this  man,  Reese — whose  testimony,  taken  alone,  must 
have  convinced  you  that  no  dependence  can  be  placed 
upon  what  he  said — even  Ae,  has  not  dared  to  say  more, 
than  that  the  respondent  told  him  the  case  could  not  be 
settled  before  the  justice,  unless  he  could  certify  that 
Mary  Everhart  had  not  committed  a  larceny.  But  it  is 
evident,  from  the  testimony  of  William  White  and  Jacob 


IMPEACHMENT   OF   JUDGE    PORTEK.  63 

AVeygandt,  Jr.,  Esquires,  who  are  gentlemen  of  character 
and  standing;  that  the  respondent  did  not  know  the  na- 
ture of  the  prosecution  or  charge,  until  he  was  informed 
of  it  by  Justice  Weygandt,  who  emphatically  says: 
"  when  I  observed  to  Judge  Porter  that  it  was  a  clear 
case  of  larceny,  he  did  not  press  the  matter."  Taking  the 
facts,  given  in  evidence,  it  appears,  that  upon  a  sudden 
quarrel,  and  in  a  moment  of  excitement,  Jacob  Reese,  Jr., 
and  Mary  Everhart  instituted  proceedings  against  each 
other,  simultaneously.  The  one  for  larceny,  the  other  for 
slander.  That  they  both  repented  what  they  had  done, 
and  were  exceedingly  anxious  to  settle  their  disputes  and 
to  pay  off'  their  respective  costs.  That  Reese  was  particu- 
larly desirous  that  it  should  be  done,  although  before 
the  court,  he  equivocated  a  good  deal  about  it.  That  at 
his  earnest  solicitation,  the  respondent  accompanied  him 
to  the  office  of  Justice  Weygandt,  %yho,  he  represented, 
was  anxious  to  see  him  ;  that  the  respondent  did  accom- 
pany him,  having  been  informed  both  by  him  and  by  Mr. 
"White,  that  it  was  a  trifling  quarrel,  which  they  were 
both  anxious  should  be  settled.  That  the  respondent, 
until  informed  of  the  nature  of  the  case,  was  disposed  to 
give  his  aid  to  restore  peace  between  them  ;  but,  that  so 
soon  as  he  found  it  was  a  prosecution  for  larceny,  he  de- 
clined having  any  thing  to  do  with  it,  and  said,  "  the 
law  must  take  its  course." 

Suppose,  if  you  please,  that  the  judge  did  what  he  was 
not  bound  to  do.  Suppose  he  was  disposed  to  be  merciful. 
Was  there  anything  criminal ;  was  there  anything 
wrong  in  what  he  did?  Are  you  to  pass  the  judgment 
of  the  law  against  a  merciful  judge.  It  is  the  first  in- 
stance in  which  I  ever  heard  of  a  judicial  officer  being 
criminally  arraigned  for  possessing  too  much  of  that, 
which  is  most  truly  styled,  the  divine  attribute  of  jus- 
tice. Judge  Chase  was  impeached  for  issuing  a  warrant. 
Judge  Porter  for  not  issuing  one.  Judge  Chase  for  being 
too  severe.  Judge  Porter  for  being  too  merciful. 


64  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

"  No  ceremony,  that  to  great  ones  'longs, 
Not  the  King's  crown,  not  the  deputed  sword, 
The  Marshal's  truncheon,  nor  the  Judge's  robe, 
Become  them  with  one-half  so  good  a  grace, 
As  mercy  does." 

But  in  the  disposition  to  practice  mercy,  you  find  no 
disposition  in  the  respondent  to  interfere  with  justice. 
The  moment  he  discovers  that  its  exercise  would  inter- 
fere with  the  due  administration  of  the  laws,  that  mo- 
ment says  he,  "  let  the  law  take  its  course."  But,  what 
are  we  to  think  of  Reese.  He  first  calls  upon  the  re- 
spondent to  do  him  a  favor,  and  when  he  has  done  it, 
with  the  blackest  ingratitude  he  accuses  him  of  crime.. 
Ingratitude  has  ever  been  considered  the  parent  and  as- 
associate  of  all  other  vices,  and  it  is  the  worst  of 
all ;  he  who  is  ungrateful  has  no  sin  but  one,  all  other 
crimes  may  pass  for  virtues  in  him.  Reese  has  been  un- 
grateful, and  deserves  the  treatment  inflicted  by  Philip 
of  Macedon  upon  the  soldier,  who,  ungrateful  for  the 
preservation  of  his  life  and  his  restoration  to  health, 
robbed  his  benefactor  of  his  possessions.  He  was  branded 
on  the  forehead  with  the  words,  "The  ungrateful  Guest." 

Had  the  defendant,  upon  her  subsequent  trial, been  ac- 
quitted through  the  influence  and  interference  of  the  re- 
spondent, then  indeed  might  some  complaint  have  been 
made  against  him.  But  you  will  find,  that  on  her  trial 
the  facts  and  the  law  are  all  submitted  to  the  considera- 
tion of  the  jury ;  arid  she  was  convicted  and  sentenced, 
and  has  expiated  her  offence  by  undergoing  the  penalty 
of  the  law.  Instead,  I  say,  of  interfering  in  her  behalf, 
you  find  that  the  respondent  says,  "Let  justice  be  done, 
regardless  of  the  consequences";  and  the  sentiment  is  re- 
echoed by  a  member  of  this  honorable  court. 

The  evidence,  as  I  have  already  stated,  disproves  the 
charge  contained  in  this  article,  and  consequently  there 
can  be  no  reason  to  apprehend  that  you  will  doubt  in 
relation  to  it. 

[The  court  here  adjourned  until  the  next  morning.] 


IMPEACHMENT    OF   JUDGE   PORTER.  65 

Mr.  Brown,  at  nine  o'clock  A.  M.,  resumed  his  argu- 
ment. 

MR.  BROWN. — While  I  gratefully  acknowledge  the  obli- 
gations I  am  under  to  this  honorable  court,  for  the  indul- 
gence granted  me  yesterday  by  an  adjournment,  I  trust  I 
shall  show  my  sincerity  in  expressing  it,  by  the  shortness 
of  my  further  trespass  upon  your  attention. 

In  the  course,  of  my  observations  yesterday,  I  observed 
that  the  respondent's  case  was  one  of  peculiar  hardship, 
as  regarded  the  motives  with  which  the  prosecution  was 
instituted.  In  this  allusion,  sir,  I  had  no  reference  to 
the  motives  of  the  honorable  the  House  of  Representa- 
tives, or  those  on  their  behalf  immediately  conducting 
this  prosecution.  The  allusion  was  to  those  who  institu- 
ted— who  originated,  this  persecution.  I  make  this  expla- 
nation now,  to  correct  or  counteract  any  misrepresenta- 
tion or  misunderstanding  which  may  have  been  made,  or 
entertained,  in  relation  to  that  which  I  did  say.  But  be 
the  motives  of  its  originators  what  they  may ;  the  pro- 
ceeding has  been  instituted,  and  the  respondent  must  en- 
dure and  meet  it.  I  know  y"  uneasy  lies  the  head  that 
•wears  a  crown;"  and  that  the  stubborn  and  unbending 
oak  will  suffer  more  beneath  the  fury  of  the  storm,  than 
the  yielding  and  more  time-serving  myrtle.  But  we 
honor  the  scathed  and  riven  tree  for  its  assimilation  to 
that  integrity  which  never  yields  the  right,  to  the  expe- 
dient. 

I  had  proceeded  so  far  as  to  have  concluded  my  obser- 
vations upon  the  third  article.  I  shall  now  approach  the 
consideration  of  those  which  remain,  and  although  they 
be  great  in  quantity,  in  quality  they  are  nothing. 

The  fourth  article  has  relation  to  the  case  of  the  Com- 
monwealth v.  John  Mill.  It  has  relation  to  a  transac- 
tion which  should  have  taken  place  at  January  Sessions, 
1819 — seven  years  since.  There  is  no  doubt  that,  in  con- 
sequence of  the  great  lapse  of  time,  this  court  are  not  in 


66  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

possession  of  as  full  and  complete  a  history  of  that  trans- 
action as  they  might  have  been,  had  it  occurred  at  a 
more  recent  period.  But  who  should  suffer  from  this  ? 
I^ot  the  respondent,  surely.  He  could  not  time  the  insti- 
tution of  these  proceedings  ;  and  if  either  party  is  to  be 
prejudiced,  it  ought  to  be  the  commonwealth  ;  because 
it  was  at  her  option  to  institute  the  proceedings  at  what 
period  she  pleased.  This  honorable  court  is  not  to  con- 
vict upon  want  of  proof,  when  the  deficiency  is  attribu- 
table to  the  prosecution  itself.  (Mr.  B.  read  the  article.) 
It  concludes,  "  In  violation  of  the  legal  and  constitutional 
right  of  every  citizen  to  have  justice  administered  ac- 
cording to  law,  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania."  Here,  again,  we  have 
another  of  the  many  specimens  with  which  these  articles 
abound,  of  legal  and  logical  conclusions,  drawn  from  classi- 
cal and  grammatical  premises.  This,  however,  is  the  charge 
— how,  and  by  whom  is  it  attempted  to  be  sustained  ?  It 
is  by  George  Levers,  the  prosecutor,  and  by  Hugh  Ross. 
Levers  does  not  support  it.  His  recollection  of  the  cir- 
cumstances is  at  best  like  a  dream.  He  no  longer  is  able 
to  recollect  the  parties  to  the  bill  obligatory,  the  alleged 
subject  of  larceny — nor  the  amount.  He  says  he  under- 
stood the  proposition  to  compromise  to  have  originated 
with  the  counsel ;  and  that  the  court  merely  assented  to 
it.  He  was  put,  as  it  were  to  torture,  by  the  opposite 
counsel ;  but  to  no  purpose.  All  that  Levers — who  wor- 
shipped at  the  shrine  of  Mammon — wanted,  was  his 
money ;  and  he  got  it.  But  who  is  the  other  witness  ? 
Hugh  Ross ;  another  member  of  this  triple,  gorgon- 
headed,  league.  The  judge  "was  very  pressing,"  "very 
urging,"  says  he.  He  does  not  presume — with  his  notes 
and  all — to  give  the  respondent's  language.  He  is  con- 
firmed in  this,  his  own  jaundiced  impression,  by  no  other 
witness.  .  I  asked  him  what  he  was  doing.  His  reply 
was,  "I  am  not  bound  to  answer."  "Not  bound,  sir! 
Why,  are  you  not  sworn  to  tell  the  whole  truth  ?  Your 


IMPEACHMENT   OF   JUDGE   PORTER.  67 

oath  has  been  recorded  here,and  in  heaven."  He  claimed 
the  protection  of  the  court  to  be  excused  from  answering. 
It  was  not  afforded  him.  He  said  he  was  "  taking  notes." 
Taking  notes !  For  what  purpose,  as  you  were  not 
concerned  in  the  cause  ?  His  trembling  motive  skulked 
in  his  coward  eye.  Again  he  claimed  to  be  excused  from 
answering,  but  in  vain  ;  again  he  hesitated,  but  at  length 
it  came  out — "  With  a  view  to  its  being  a  charge  against 
Judge  Porter,  some  day."  Here  was  an  occasion  and  an 
employment  worthy  the  amanuensis  of  Prince  Lucifer 
himself;  noting  down  the  foibles  and  the  faults  of  human 
nature.  Such  testimony  should  scarcely  be  adverted  to, 
much  less  relied  on,  for  any  purpose.  But,  sir,  although 
we  here  unveiled  him,  we  stopped  not  with  that.  He 
was  obliged  to  own  that  he  travelled  miles  to  procure 
signatures  to  the  complaint  against  the  respondent.  He 
sought  a  public  dance  house  to  procure  signatures.  And 
then, some  time  after  he  had  confessed  this,  he  again  asks 
to  be  permitted  to  come  before  you,  to  give  the  reason 
why  he  did  so.  He  says  that  he  did  it,  so  that  he  could 
send  the  petition  by  Jarrett,  and  save  postage.  Here,  sir, 
is  a  fellow,  according  to  his  own  account,  hunting  down 
the  reputation  of  his  fellow-man ;  putting  his  hands  in 
his  pockets,  and  coolly  calculating  the  cost  of  twenty- 
five  cents  postage  which  he  might  save  by  sending  on  hia 
precious  document  by  Jarrett,  the  special  messenger  of 
the  league.  A  man  who  has  battened  last  year — a 
month ;  and  this  year — a  fortnight,  upon  the  coffers  of 
the  commonwealth  !  But,  be  it  remembered,  that  this 
saving  was  to  be  of  the  funds  of  the  commonwealth,  for 
she  pays  the  postage  on  all  letters  to  the  members  of  the 
Legislature. 

Ross  is  unsustained  and  unsupported  in  his  evidence  by 
Mr.  Levers,  the  other  witness  for  the  prosecution.  He  is 
contradicted  by  James  M.  Porter,  Esq.,  the  deputy  attor- 
ney general  at  the  time ;  who  had  a  right,  if  he  chose, 
to  enter  a  nolle  prosequi,  even  against  the  consent  of  the 


68  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN". 

court ;  because  it  was  previous  to  the  passage  of  the  act 
of  20th  March,  1819,  restraining  the  attorney  general's 
power,  relative  to  the  entries  of  nolle  prosequi.  (Mr. 
Brown  here  read  the  indictment,  Commonwealth  v.  John 
Mill.)  It  appears  by  the  indictment,  that  the  bill  obliga- 
tory never  was  assigned  by  Mill,  and  from  the  evidence 
before  us,  it  is  manifest,  that  he  had  merely  deposited  it 
with  Levers ;  and  had  not  received  full  consideration  for 
it ;  nor  parted  with  the  property  in  it ;  and  that  he  took 
it  under  a  claim  of  property.  But  why,  as  this  was  the 
act  of  the  whole  court,  is  it  to  be  charged  against  the  re- 
spondent alone;  both  the  associates,  Judges  Cooper  and 
AVagener  concurred ;  and  the  latter  tells  you  that  he  does 
not  now  recollect  all  the  circumstances,  but  he  remembers 
that  he  did  not  think  it  was  an  indictable  offence ;  and  of 
this  he  is  certain,  that  had  there  been  anything  improper, 
he  never  would  have  consented.  The  jury  too,  concurred 
in  the  opinion  of  the  court,  and  without  a  moment's  hesi- 
tation, acquitted  the  defendant. 

I  do  not  apprehend  that  there  can  be  a  loop  upon  which 
to  hang  a  doubt,  in  relation  to  this  article. 

The  fifth  article  relates  to  the  case  of  Wannemacher  v. 
Sechler.  In  that  case  there  had  been  an  indictment,  in 
the  sessions,  for  this  same  assault  and  battery,  for  which 
the  civil  action  was  brought  in  the  Common  Pleas.  Upon 
that  indictment,  the  defendant  pleaded  guilty.  On  the 
trial  of  the  civil  action,  the  respondent,  as  every  judge 
and  lawyer  would  have  done,  charged  that  the  plaintiff 
was  entitled  to  recover.  The  amount  he  left  entirely  to  the 
jury.  The  jury,  disregarding  the  law  as  laid  down  to  them 
by  the  court,  and  assuming  to  themselves  the  province  of 
the  court,  brought  in  a  verdict  for  the  defendant.  If  the 
respondent  had  refused  to  receive  this  verdict,  he  would 
have  done  right.  But  he  did  not  refuse  to  receive  it.  He 
advised  the  jury  again  to  go  out ;  repeated  to  them  what 
the  law  was ;  and  instructed  them  that  the  law  of  the 
land  was  part  of  the  evidence  upon  which  they  bad  sworn 


IMPEACHMENT   OF  JUDGE   PORTER.  69 

to  decide  the  cause,  arid  that  it  ought  not  to  be  disre- 
garded. The  jury  received  the  recommendation  of  the 
court,  and  agreed  to  go  out  again,  and  did  go  out.  Was 
this  an  insult  to  the  jury  ?  So  far  from  it,  I  say,  that  the 
jury  in  again  bringing  in  the  same  verdict,  nay — in  find- 
ing the  first  one — insulted  the  court.  If  the  interference 
by  the  courts  with  the  rights  of  the  jury,  be  an  insult  to 
them  ;  surely,  an  interference  by  the  jury  with  the  rights 
of  the  court,  is  an  insult  to  the  court.  We  are  entitled 
to  the  one  side  or  the  other  of  the  argument ;  for  that 
rule  is  a  bad  one  which  will  not  work  both  ways.  Sir, 
the  jury  were  bound  to  take  the  law  from  the  court,  and 
the  respondent  in  so  instructing  them,  acted  as  he  always, 
I  am  proud  to  say,  acts — with  entire  judicial  propriety. 
Kever,  I  trust — much  as  I  prize  the  inestimable  right  of 
trial  by  jury — shall  we  live  to  see  the  day  when  the  jury 
shall  take  the  law  into  their  own  hands,  in  civil  cases. 
They  have  not,  and  they  ought  not  to  have, the  control  of 
the  law.  Injury  and  distress  beyond  conception,  would 
be  the  result,  if  they  had ;  because,  should  they  err  in  its 
construction,  the  parties  would  be  remediless.  There 
could  be  no  revision,  no  correction  of  their  errors; 
whereas,  if  the  judge,  who  decides  the  law,  errs,  the  law 
has  given  the  means  whereby  you  can  revise  his  errors. 

But  it  is  alleged  that  the  respondent  set  the  verdict 
aside  without  a  motion.  The  fact  is  not  so.  I  will  grant 
that  Christian  F-  Beitel,  the  prothonotary,  did  say  that 
no  motion  was  made  for  a  new  trial,  and  he  is  the  only 
witness  that  says  so.  This  court  will  recollect,  that  the 
court  at  which  this  transaction  took  place,  was  the  first 
one  at  which  Mr.  Beitel  officiated  as  prothonotary.  A 
competent  man  would  probably  be  somewhat  awkward  at 
a  new  business  ;  and  much  more  so,  consequently,  would 
one  who  was  as  little  qualified  for  the  situation  as  Mr. 
Beitel.  He  may  therefore  easily  be  mistaken,  especially 
as  twelve  months  ago  he  knew  nothing  about  it ;  as  ap- 
pears by  his  evidence  before  the  committee.  But  Mr. 


70  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

Smith  expressly  contradicts  him,  and  says,  that  he  did 
move,  not  for  a  rule  to  show  cause,  but  at  once  for  a  new 
trial ;  that  he  did  it  as  soon  as  the  verdict  was  recorded, 
and  while  the  jury  were  yet  in  the  box ;  on  purpose  that 
the  jury  might  hear  him,  and  learn  that  they  ought  not 
to  disregard  the  law.  Apply  to  this  testimony  the  rules 
of  evidence  read  by  the  gentleman  from  Swift's  Treatise ; 
and  where  does  it  leave  the  testimony  of  Mr.  Prothonotary 
Beitel. 

I  almost  wish,- however,  for  the  respondent's  sake,  that 
no  motion  had  been  made,  and  that  he  had  himself  set 
the  verdict  aside,  without  request.  He  was  sworn  to  ad- 
minister the  laws,  to  do  justice  without  fear,  favor  or 
affection ;  and  was  he  to  sit  quietly  by  and  see  those  laws 
trodden  under  foot,  and  that  justice  trampled  on  and  dis- 
regarded by  a  jury  ?  The  greatest  judge  who  ever  sat 
upon  a  bench  in  the  United  States — and  who  still  sheds 
lustre  upon  the  high  and  dignified  station  which  he  so 
usefully  fills  in  our  judiciary — has  granted  new  trials 
without  motion,  where  the  jury  have  flagrantly  violated 
the  law,  and  usurped  the  province  of  the  court.  I  should 
be  the  last  man  who  would  encourage  encroachment  upon 
the  rights  of  the  jury;  while  I  would  be  the  first  to  resist 
an  encroachment  by  the  jury  on  the  rights  of  the  court. 
Each  has  its  appropriate  sphere;  each,  in  its  own  province, 
has  its  exclusive  and  appropriate  duties  to  perform,  and 
each  should  move  in  its  own  orbit. 

But  it  is  said,  that  the  respondent  used  improper  lan- 
guage to  Mr.  King ;  that  he  told  him  "  not  to  attempt  to 
make  the  jury  perjure  themselves."  Mr.  King,  who  has 
testified  with  great  propriety,  admits  that  at  the  time,  he 
was  considerably  excited ;  and  that,  from  that  cause,  or 
the  lapse  of  years,  he  cannot  be  certain  even  in  his  impres- 
sions ;  and  will  not  undertake  to  say  what  the  language 
used  by  the  respondent  was.  All  that  he  is  certain  of,  is, 
that  the  impression  upon  his  mind,  was,  that  the  judge 
charged  him  with  acting  improperly,  when  he  told  the 


IMPEACHMENT    OF   JUDGE   PORTER.  71 

jury  they  had  a  right  to  persist  in  their  verdict.  Mr. 
Beitel,  who  never  recollected  anything  of  this  matter 
before  the  committee  of  investigation ;  and  whose  knowl- 
edge has  been  produced  by  reading  over  the  printed 
charges  and  conversing  about  the  matter,  since  April 
last;  tells  you  :  "  that  the  judge  told  Mr.  King  he  wanted 
to  make  the  jury  perjure  themselves."  Upon  the  other 
parts  of  his  evidence,  I  have  animadverted  sufficiently  in 
my  observations  on  the  preceding  parts  of  this  article, 
and  will  therefore  not  observe  further  upon  it.  But  the 
attorney  general,  Mr.  Smith,  was  present;  he  was  cool, 
and  understood  his  business,  and  therefore  able  to  give  us 
a  correct  statement  of  the  facts  as  they  occurred.  He 
tells  you, that  when  the  jury  were  about  retiring  to  recon- 
sider their  verdict,  Mr.  King  told  them  that  they  might 
find  the  same  verdict — or  persist  in  their  verdict — and 
that  the  respondent  observed  to  him,  "  Oh  !  Mr.  King,  do 
not  endeavor  to  make  the  jury  do  what  is  improper — 
they  are  sworn  to  decide  the  cause  according  to  law  and 
the  evidence,  let  them  do  so."  That  there  was  nothing 
remarkable  in  the  respondent's  manner — that  he  saw  no 
passion  in  him — that  Mr.  King  was  a  little  warm,  and  in 
the  opinion  of  the  witness,  richly  deserved  all  the  judge 
said  to  him.  This  venerable  and  respected  officer  of  the 
commonwealth,  was  present,  and  saw,  and  heard, all  that 
took  place ;  and  has  related  it  as  it  occurred. 

I  must  here  be  permitted  to  remark  upon  the  little 
respect  or  regard  paid  to  many,  if  not  all  our  witnesses — 
no  matter  what  their  age  or  standing — by  the  opposite 
counsel,  in  the  manner  of  propounding  his  questions. 
When  they  had  related  their  knowledge,  the  counsel 
chose  to  cross-examine  them,  by  saying,  "  will  you  under- 
take to  say,"  or  "  will  you  venture  to  say,  sir,"  that  this, 
or  that  did  not  take  place,  or  was  not  said.  The  wit- 
nesses (and  I  now  allude  particularly  to  the  attorney 
general ),  would  not  undertake  to  say  what  did  not  take 
place;  but  they  undertook  to  say  what  did  take  place,  and 


72  FOKENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

what  the  respondent  did  say.  "With  sucli  witnesses,  we 
tread  on  holy  ground. 

But,  sir,  if  the  judge  had  said  so,  it  is  no  ground  of 
impeachment ;  because,  if  the  respondent  had  even  been 
in  error,  he  committed  no  offence,  he  was  guilt}*-  of  no 
misdemeanor.  But  I  deny  that  he  would  have  been  even 
doing  wrong,  had  he  used  the  language  imputed  him. 
Are  counsel  to  be  at  liberty  to  insult  the  court  with  im- 
punity, and  must  your  judges  quietly  submit,  as  though 
they  were  tongue-tied?  The  judiciary  is  everything  to  us. 
It  is  entitled  to,  and  should  receive  our  countenance  and 
support.  It  is  easily  assailed,  and  if  its  character  and 
standing  be  lost,  your  property — your  liberty,  is  gone. 

The  sixth  article  is  next  in  order.  That  was  the  case 
of  James  Hays  v.  Hugh  Bellas ;  the  suit,  in  which  case, 
was  brought  to  November  Term,  1815,  and  was  tried  at 
April  Term,  1818.  It  is  now  ten  years  and  upwards  since 
the  suit  was  brought,  and  nearly  eight  years  since  the 
cause  was  tried.  And  here  again,  I  must  be  permitted  to 
advert  to  the  lapse  of  time  which  has  intervened,  and  to 
ask  you,  that  anything  arising  from  want  of  evidence  in 
consequence  of  it,  shall  operate  against  the  prosecution, 
and  not  against  the  respondent.  There  are  two  matters 
of  accusation  contained  in  this  article.  The  first,  is  the 
interlineation  of  the  following  words,  in  the  charge  of  the 
court  after  it  had  been  signed  and  ii led ;  to  wit :  "  a  man 
may,  if  he  pleases,  buy  an  imperfect  right,  and  if  he  is  not 
imposed  upon,  but  buys  with  a  knowledge  of  the  imper- 
fections, he  shall  in  law  be  held  to  the  performance  of  his 
contract." 

The  second  is  for  writing  on  the  margin  of  the  bills  of 
exceptions,  the  following  words : — "•  and  the  same  papers 
were  objected  to,  for  want  of  proof  of  the  handwriting  of 
the  said  Henry  L.  Clark,  and  for  other  causes  ;  but  it  was 
finally  and  mutually  agreed,  that  the  whole  correspond- 
ence between  the  parties  should  be  given  in  evidence,  and 
that  the  third  exception  before  mentioned,  be  therefore 


IMPEACHMENT   OF  JUDGE   PORTEE.  73 

withdrawn,  and  the  last  mentioned  papers  were  read  in 
evidence  accordingly." 

Let  us  approach  these  charges  boldly,  and  "  take  the 
bull"  at  once,  "  by  the  horns."  I  will  however  premise, 
that  there  has  not  been  a  solitary  witness  examined  on 
the  part  of  the  prosecution,  who  has  not  been  disappointed 
or  displeased  in  some  personal  matter,  or  professional  pur- 
suit ,  and  who  does  not  come  forward  with  all  the  bias 
incident  to  poor  weak  human  nature,  when  operated  upon 
by  such  causes :  and  this  observation  applies  with  peculiar 
force  upon  the  present  article,  as  the  attempt  to  sustain 
this  part  of  the  case,  is  supported  alone  by  the  evidence 
of  Hugh  Bellas,  the  defendant  in  the  cause,  who,  accord- 
ing to  his  own  acknowledgment,  has  been  reflecting  upon 
the  circumstances  ever  since ;  thus  giving  additional 
strength  to  the  original  bias  of  his  mind,  in  relation  to  it. 
Mr.  Bellas  is,  no  doubt,  a  respectable  man,  at  least,  when 
compared  with  the  other  inciters  of  this  prosecution. 
Yet,  he  is  but  a  man,  and  one  who  has  his  full  share  of 
personal  feelings  to  be  operated  upon.  That  they  have 
been  operated  upon,  is  manifest  from  every  part  of  his 
testimony. 

As  to  the  first  branch  of  the  accusation — the  interlinea- 
tion in  the  charge  of  the  court — we  admit  that  the  re- 
spondent made  the  interlineation,  and  made  it  after  the 
charge  was  filed.  But  sir,  we  say,  and  the  evidence  bears 
us  out  in  the  assertion,  that  the  matter  interlined  was 
actually  delivered  in  charge  to  the  jury,  and  that  when 
the  interlineation  was  made,  the  respondent  was  ignorant 
that  the  charge  had  been  tiled.  What  is  the  evidence 
on  this  subject  ?  Mr.  Bellas  says,  that  the  words  inter- 
lined were  not  in  the  charge  when  signed  by  Judge 
Porter;  that  the  judge  delivered  the  charge  orally: — 
(and  by  the  by,  I  never  heard  of  one  that  was  not  so 
delivered)  that  notes  of  it  were  taken  down  by  Mr.  J.  M. 
Porter,  who  was  his  counsel, — that  from  these  he  wrote 
out  a  charge,  and  the  next  morning  handed  it  to  the  re- 


74  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

spondent,  who  read  it  over  and  signed  it ;  and  that  he 
knows  nothing  of  the  interlineation  or  how  it  was  made, 
as  he  left  Easton  the  day  the  charge  was  signed  by  the 
respondent. 

This  is  the  only  evidence  adduced  in.. support  of  the 
accusation  ;  and  Mr.  Bellas  on  his  cross-examination,  says 
he  has  not  sufficient  recollection  of  the  charge  of  the  court 
to  say  that  the  judge  did,  or  did  not,  use  the  language  in- 
terlined, in  his  charge  to  the  jury.  Taking  it  up  on  this 
evidence  alone,  what  is  there  in  it  ?  That  upon  subsequent 
perusal,  the  respondent  discovered  that  a  sound  legal  pro- 
position which  he  had  laid  down  to  the  jury,  had  been 
omitted  in  taking  down  the  charge;  he  therefore  inter- 
lined it  in  the  charge.  But  when  he  did  it — whether  be- 
fore or  after  it  was  filed — by  no  means  appears.  The  law 
will  presume  it  was  done  before  it  was  filed  ;  because  that 
is  the  natural  presumption,  and  the  presumption  in  favor 
of  innocence.  For  you  will  recollect  the  charge  here  is 
FORGERY  ;  and  yet  we  are  told  that  the  character  of  the 
respondent  is  not  assailed. 

But  when  you  come  to  consider  the  evidence  of  Capt. 
D.  D.  Wagener,  who  was  one  of  the  jurors  in  the  cause ; 
and  Mr.  James  M.  Porter,  who  was  the  counsel  of  Mr. 
Bellas ;  all  doubt  or  difficulty  on  the  subject  vanishes : 
and  we  have  no  occasion  to  call  in  presumptions,  or  even 
the  bulwark  of  character  to  aid  us  in  our  defence.  Capt. 
Wagener  tells  you  that  he  was  a  juror  in  the  cause ;  that 
Judge  Porter  did  use  words  in  his  charge  to  the  jury,  to 
the  effect  of  those  interlined  ;  and  he  tells  you  the  reasons 
why  he  feels  positive  that  the  respondent  did  so  charge 
the  jury.  He  says,  that  after  having  heard  the  evidence, 
he  and  Mr.  John  Horn  had  adopted  the  idea  that  the 
plaintiff  ought  to  recover,  as  he  had  not  deceived  the  de- 
fendant ;  and  that  the  defendant  had  bought  the  patent 
right  in  controversy  at  his  own  risk :  and  that  when  they 
retired  to  their  room  to  deliberate,  after  receiving  the 
charge  of  the  court,  he  remarked  to  Mr.  Horn,  that  Judge 


IMPEACHMENT    OF   JUDGE   PORTER.  75 

Porter  had  taken  the  same  views  upon  that  part  of  the 
case,  that  they  did ;  and  he  adds,  that  it  was  upon  that 
very  ground  the  jury  founded  their  verdict. 

Again ; — If  you  examine  the  issues  which  had  been 
joined,  and  the  points  propounded  to  the  court ;  you  find 
that  the  matter  interlined  had  a  direct  relation  to  the 
cause ;  and  surely  no  one  will  say  that  it  is  not  sound  law ; 
and  thence  it  must  fairly  be  inferred,  that  it  was  the  sub- 
ject matter  of  charge.  So  much  then  for  the  proof  that 
this  language  was  actually  used  to  the  jury.  Now,  as  to 
the  time  and  manner  in  which  they  were  interlined.  Mr. 
J.  M.  Porter  says,  that  it  was  the  first  cause  he  tried  in 
Northampton  county ;  that  he  labored  with  zeal  for  his 
client,  and  fought  every  inch  of  ground ;  that  he  took 
notes  of  the  charge  as  it  was  delivered ;  that  on  the  same 
evening  he  transcribed  it  and  on  the  next  morning  handed 
it  to  the  respondent,  who  looked  over  it  hastily,  signed  it, 
and  gave  it  back  again  to  him  ;  that  before  the  term  had 
ended,  he  went  off  to  the  West-Chester  court :  and  previous 
to  leaving  Easton,  he  handed  the  charge  of  the  court  to 
General  Spering,  the  prothonotary.  On  his  return  to 
Easton  in  June  following,  he  was  informed  that  the  bills 
of  exceptions  drawn  by  Mr.  Bellas,  were  too  informal  to 
be  signed.  That  he  then  procured  the  charge  of  the  court 
from  the  prothonotary,  drew  up  the  bills  of  exceptions, 
attached  them  and  the  charge  of  the  court  together  ;  and 
at  the  ensuing  August  Term,  handed  the  whole  to  the  re- 
spondent ;  who  then  examined  them,  corrected  any  errors 
which  he  discovered  so  as  to  make  the  papers  conform  to 
the  truth  of  the  case;  and  then  signed  the  bills  of  excep- 
tions ;  and  they  were  then  for  the  first  time,  as  the  re- 
spondent believed,  filed  of  record.  So  far,  as  regarded  the* 
bills  of  exceptions,  such  was  the  fact ;  and  how  could  the 
judge  suppose,  as  all  the  papers  were  appended  together, 
that  part  had  been  filed  and  part  had  not  ?  From  all  the 
circumstances  we  have  a  right  not  only  to  infer,  but  posi- 
tively to  say,  that  the  language  interlined  was  actually 


76  FORENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

used  to  the  jury ;  and  that  the  judge  was  ignorant  of  the 
paper  having  been  filed,  when  he  made  the  interlineation. 
But  had  he  even  known  it ;  he  did  no  more  than  the 
Supreme  Court,  on  a  suggestion  of  diminution  of  record, 
would  have  compelled  him  to  do.  He  but  placed  the 
truth  upon  the  record.  Truth  would  never  tarnish  the 
books  of  heaven  itself.  The  judge  was  bound  to  hold 
the  scales  of  justice  even  between  the  parties ;  and  he 
could  have  had  no  motive  but  that  of  perfect  honesty  in 
doing  what  he  did. 

But  it  is  said,  that  the  letter  of  Mr.  Porter  to  Mr.  Bel- 
las, says  "  the  judge's  conduct  was  improper."  You  will 
remember  that  this  letter  was  written  nearly  eight  years 
since ;  when  a  partial  feud  existed  between  Mr.  Porter 
and  his  brother,  the  respondent.  Mr.  Porter  was  a  young 
man  just  making  his  debut  in  Northampton  county:  it 
was  his  first  cause  there :  he  and  his  colleague,  tyros  as 
they  were  in  the  profession,  had  gone  through  a  long 
and  a  fierce  contest  with  veterans  of  the  bar :  they  had 
been  defeated  :  and  under  the  warmth  and  feeling  of  the 
moment  he  wrote  the  letter,  which  is  here  introduced  by  the 
prosecution  ;  and  serves,  to  use  the  beautiful  and  figura- 
tive language  of  a  distinguished  author,  "  like  a  moon- 
beam on  a  thunder  cloud,  to  make  the  storru  more  dread- 
ful." But  what  does  this  letter — the  writing  of  which  was 
far  more  commendable  than  its  dishonorable  publication — 
say?  That  "the  conduct  of  the  judge  in  putting  it  (the 
interlineation)  there,  was  highly  improper."  This  declara- 
tion is  made,  as  I  say,  under  the  influence  of  irritation 
and  excitement;  and  the  witness  "expressly  states — "in 
the  belief  on  his  part,  that  the  judge  knew  the  charge 
had  been  filed."  Upon  mature  reflection,  he  says  now, 
that  he  believes  he  did  Judge  Porter  injustice  in  that 
supposition,  and  in  the  consequent  charge  of  impropriety. 
Shall  Mr.  Porter  not  be  permitted  to  correct  his  errors  ? 
Must  he,  like  Hugh  Ross  and  others  (and  I  beg  his  pardon 


IMPEACHMENT    OF   JUDGE   PORTER.  77 

for  even  naming  him  with  them),  grow  older  and  grow 
worse. 

As  to  the  second  branch  of  accusation  ;  I  shall  confine 
my  remarks  principally  to  the  allegation  on  our  part,  that 
the  marginal  note  to  be  found  on  the  bills  of  exceptions 
was  according  to  the  truth  of  the  case;  because  it  is  per- 
fectly clear,  that  the  note  was  placed  there  before  the  re- 
spondent signed  it,  and  of  course,  before  it  became  a 
record.  Mr.  Porter  tells  you  that  the  bills  of  exceptions 
were  handed  to  the  respondent  at  August  Term,  1818 ; 
and  when  he  next  saw  them,  they  were  signed,  and  con- 
tained the  marginal  note  in  question  ;  and  the  marginal 
note,  and  the  other  corrections,  must  have  been  put  on, 
in  the  interim.  This  is  also  confirmed  by  the  allegation 
in  the  letter,  of  which,  no  doubt,  much  will  be  said.  He 
there  acknowledges  the  receipt  of  Mr.  Bellas's  letter 
(dated  22d  August,  1818),  a  few  days  after  its  date  ;  and 
says:  "the  bills  of  exceptions,  were  signed  at -August 
court,  a  few  days  before  the  receipt  of  Mr.  Bellas's  letter. 
The  August  Term,  1818,  commenced  upon  the  17th  day 
of  the  month  :  The  letter  might  take  three  days  or  a 
week  to  go  from  Sunbury — where  Mr.  Bellas  lived — to 
Easton  ;  and  the  bills  of  exceptions  may  have  beeii  signed 
during  the  first  week  of  the  court." 

This  is  all  the  evidence  we  have,  as  to  the  time  when 
the  marginal  note  was  placed  there,  and  when  the  bills 
were  signed. 

Then — on  the  subject  of  the  truth  of  the  fact  stated  in 
the  note — Mr.  Bellas  only  says :  "  he  has  no  knowledge 
of  any  such  consent,  as  is  there  stated,  and  he  feels  confi- 
dent no  such  consent  was  given;"  and  here  permit  me  to 
say,  that  in  this  Mr.  Bellas  is  unsupported  by  any  witness 
whatever,  and  is  contradicted  first  by  the  record,  and 
secondly  by  the  evidence  of  Major  Hays  and  Mr.  Porter. 
!N"ay,  the  strong  presumption  to  be  drawn  from  the  whole 
of  Mr.  Bellas's  own  testimony,  taken  together,  is,  that  he 
is  wrong  when  he  makes  that  declaration:  because  he 


78  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

says,  that  he  and  his  counsel  were  willing  that  the  whole 
correspondence  should  go  to  the  jury,  and  that  the  reason 
why  the  third  exception  was  taken,  was,  that  the  op- 
posite counsel  would  not  so  agree.  But  when  he  subse- 
quently offered  on  his  part,  the  remainder  of  the  corre- 
spondence, we  find  it  admitted — not  without  objection,  but 
by  consent — after  objection  taken  and  withdrawn ;  and 
even  letters  produced  by  the  plaintiff  without  notice-;  and 
unproved  copies  received  where  the  originals  could  not  be 
had.  According  to  this  statement  alone,  how  do  the  facts 
strike  every  member  of  this  court  ?  why,  that  certain 
letters  passing  between  Henry  L.  Clark  and  Hugh  Bellas, 
were  offered  in  evidence.  They  were  reciprocally  objected 
to.  The  first  one  admitted,  is  excepted  to  by  the  defend- 
ant ;  not  for  want  of  proof  of  the  handwriting,  but  be- 
cause it  was  only  part  of  the  correspondence.  Subse- 
quently the  defendant  offers  certain  other  of  those  letters 
in  evidence,  to  which  the  plaintiff  objects,  because  they 
were  not  proved.  Then,  how  could  they  be  admitted  in 
evidence?  Mr.  Bellas  says  he  did  not  prove  them,  and 
that  he  was  willing  to  waive  all  objection,  provided  the 
whole  correspondence  went  to  the  jury.  It(did  go!  It 
could  go  in  no  other  way  but  by  consent ;  and  if  there 
were  no  actual  and  absolute  declaration  on  the  part  of 
the  defendant  that  the  third  bill  of  exceptions  was  with- 
drawn, could  the  court  do  otherwise  than  suppose  such 
was  the  intention  of  the  parties,  and  such  their  under- 
standing. But  the  testimony  of  Major  Hays  and  Mr. 
Porter,  puts  the  matter  beyond  doubt.  The  former  tells 
you  that  letters  from  Bellas  to  Clark,  and  from  Clark  to 
Bellas,  were  offered  in  evidence  ;  that  the  attorneys  on 
both  sides  disputed  the  letters ;  that  they  had  a  very  hard 
argument,  and  after  they  spent  a  good  deal  of  time,  the 
judge  said,  "  I  think,  gentlemen,  you  had  better  let  all  the 
letters  go  to  the  jury."  Finally  they  agreed,  and  he  thinks 
all  the  letters  and  papers  went  to  the  jury.  Mr.  Porter 
tells  you,  that  when  the  letter  from  Bellas  to  Clark  (dated 


IMPEACHMENT   OF   JUDGE    PORTER.  79 

10th  December,  1813)  was  offered  in  evidence ;  the  court 
compared  the  handwriting:  with  that  of  Mr.  Bellas  to  the 
article  of  agreement — which  had  been  already  proved — 
and  said  it  might  go  to  the  jury  for  them  to  compare  it ; 
that  Mr.  Scott  and  he  then  opposed  the  admission  of  the 
letter  in  evidence,  on  the  ground  of  its  being  only  a*  part 
of  the  correspondence.  After  argument,  the  court  ad- 
mitted the  letter,  and  the  third  bill  of  exceptions  was 
taken.  "While  this  matter  was  before  the  court,  Mr.  Bel- 
las instructed  his  counsel,  and  they  so  informed  the 
court,  that  if  the  other  side  would  agree  to  admit  the 
whole  correspondence,  he  had  no  objection  to  admit  this, 
as  part  of  it.  "When  the  plaintiff  closed  his  rebutting 
proof,  of  which  that  letter  was  part,  the  defendant's  coun- 
sel offered  in  evidence,  some  letters  from  Clark  to  Bellas. 
I  presume  they  were  those  of  the  2d  November  and  2d 
December,  1813,  and  15th  and  23d  August,  1814,  men- 
tioned in  the  bill  of  exceptions.  To  the  admission  of 
these  the  plaintiff's  counsel  objected  ;  and  Mr.  Sitgreaves 
charged  the  defendant  with  blowing  hot  and  cold ;  first 
in  denying  Clark's  authority;  and  then  in  endeavoring  to 
make  his  letters  prejudice  Major  Hays.  The  judge  then 
advised  both  sides,  to  waive  all  captious  objections  and 
admit  the  correspondence  ,  and  that  after  some  observa- 
tions by  the  counsel  as  to  who  was  in  the  right — as  is  not 
uncommon,  they  agreed  on  both  sides  to  admit  the  whole 
correspondence,  and  it  was  accordingly  given  in  evidence. 
It  is  true,  Mr.  Porter  says,  there  was  no  express  declara- 
tion on  the  part  of  the  defendant,  that  this  third  bill  of 
exceptions  should  be  withdrawn ;  but  the  assent  to  the 
proposition  by  the  court,  was  a  waiver  of  all  exception  in 
relation  to  that  part  of  the  case.  Shall  the  party  be  en- 
titled to  the  benefit  of  the  agreement  to  admit  the  whole 
correspondence,  and  yet  hold  fast  to  his  exceptions  as  to 
part  ? — Certainly  not !  But  it  is  enough  for  us,  that  the 
court  understood  such  to  be  the  intention  of  the  parties  ; 
and  if  so,  even  if  in  error,  there  can  be  no  impropriety 


80  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

imputed  to  the  respondent  for  stating  the  fact  as  he 
understood  it. 

The  court  will  remember,  that  the  charge  under  this 
article,  is  forgery ;  that  it  imputes  to  the  honorable  re- 
spondent— who  for  three  score  years  has  maintained  an 
unsullied  reputation — whose  character,  it  has  been  admit- 
ted, is  unimpeachable — and  of  whom  the  counsel  for  the 
managers,  has  declared  in  relation  to  this  prosecution, 
"  that  there  is  not  a  single  charge  that  imputes  dishon- 
esty" to  him :  I  say,  that  this  charge  imputes  to  him 
"the  false  making  or  alteration  of  a  writing,  with  intent 
to  defraud  another,"  which  is  the  legal  definition  of  for- 
gery. How  this  charge  is  to  be  reconciled  with  the 
declaration  that  "  there  is  no  imputation  of  dishonesty," 
remains  for  the  learned  counsel  to  show.  But  this  we 
know ;  that  where  there  could  be  neither  motive  nor 
object  for  so  doing,  it  would  require  proof,  strong,  clear, 
and  undeniable — upon  which  no  suspicion  could  cast  a 
shade — to  convince  any  tribunal  that  an  honest  man, 
who  maintained  a  high  and  respectable  standing  in  the 
community,  would  commit  a  crime,  which  betokens  a 
total  dereliction  of  moral  rectitude,  and  would  consign  its 
perpetrator  to  infamy  for  life.  There  can  be  no  stronger 
breast-plate  than  a  heart  untainted. 

The  seventh  article  contains  two  branches  of  accusation. 
The  first  branch  has  relation  to  the  two  alleged  cases  of 
Schwenk,  administrator  of  Schwenk,  v.  Ebert — in  which 
it  is  said  :  "  the  respondent  neglected  or  refused  to  file 
his  opinions,  although  required  so  to  do."  It  turns  out 
that  there  was  but  one  case  of  that  name  in  Northamp- 
ton county,  and  on  referring  to  the  evidence,  how  do  the 
facts  appear  before  this  court  ? 

It  appears  that  an  appeal  had  been  taken  from  the 
judgment  of  a  justice  of  the  peace  on  the  7th  of  March, 

1822,  which  was  not  tried  in  court  until  the  1st  of  May, 

1823.  Between  the  time  of  taking  this  appeal   and  its 
being  tried,  the   Legislature   passed   the  act   of  1st   of 


IMPEACHMENT  OF  JUDGE  PORTER.  81 

April,  1823,  repealing  the  ninth  section  of  the  act  of 
1820,  which  altered  the  rule  on  the  subject  of  costs,  in 
cases  of  appeal.  A  number  of  questions  arose  under 
these  acts,  in  the  various  cases  tried  in  Northampton 
county ;  and  it  would  rather  seem  from  the  evidence, 
that  when  the  judge  gave  his  opinion  in  this  case  a  con- 
versation took  place,  in  which  nearly  all  the  members  of 
the  bar  participated,  in  which  it  was  stated,  that  it  was 
desirable  that  the  opinion  of  the  Supreme  Court  upon 
the  construction  of  these  acts,  should  be  taken.  In  that 
conversation,  it  seems  to  have  been  agreed,  that  a  case 
should  be  taken  up  which  would  embrace  all  the  ques- 
tions which  had  arisen.  In  the  course  of  this  conversa- 
tion, a  request  was  made  of  the  judge  to  file  his  opinion 
in  this  case;  but  it  seemed  agreed  that  the  filing  it  in 
any  case,  which  would  carry  the  question  fairly  up, 
would  answer.  The  case  of  Grace  v.  Altemus,  decided 
shortly  after,  did  embrace  all  the  points  which  would  be 
likely  to  arise  under  those  acts  ;  and  in  that  case  Judge 
Porter  delivered  and  filed  an  elaborate  opinion  ;  and  the 
case  was  removed  to  the  Supreme  Court,  where  it  is  yet 
pending:  No  subsequent  request  ever  was  made  of  the 
respondent,  to  file  his  opinion  in  the  case  of  Schwenk  v. 
Ebert ;  had  such  a  request  been  made,  it  would  have 
been  filed ;  although  for  obtaining  a  rehearing,  it  was 
not  necessary,  as  all  the  facts  appeared  upon  the  record. 
There,,  therefore,  could  have  been  no  motive  for  with- 
holding it;  nor  was  any  injury  sustained:  because  even 
Mr.  Charles  Davis,  himself,  says  that  his  client  immedi- 
ately abandoned  all  idea  of  removing  the  cause  to  the 
Supreme  Court. 

I  will  merely  add,  that  the  utmost  that  is  made  of  this, 
is  a  mere  oral  request.  The  language  of  the  act  is  not 
request,  it  is  require.  The  judge  was  not  required  here,  to 
file  his  opinion ;  there  was  a  mere  intimation  given,  that 
the  party  might  perhaps  ask  a  review  of  the  decision,  in 
which  case  the  judge  was  requested  to  file  his  opinion. 

6 


82  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

This  review  never  was  had ;  nor  was  the  respondent's  at- 
tention ever  again  even  called  to  the  case,  until  it  was 
made  a  matter  of  accusation  against  him,  by  Mr.  C. 
Davis  last  winter.  It  is  a  miserable  plan  for  the  young 
to  attempt  to  build  their  hopes  of  eminence  or  elevation 
upon  the  prostration  of  the  aged  or  distinguished.  It  is 
generally  as  unsuccessful  as  the  snail's  attempt  to  destroy 
the  beauty  of  the  statue  ;  and  has  about  as  worthy  a 
motive  for  its  origin,  as  the  fable  imputes  to  that  reptile. 
The  second  branch  of  this  article,  is  most  satisfactorily 
refuted  by  the  respondent's  answer  to  it,  which  has  in 
every  respect  been  sustained  by  the  evidence.  (Here  Mr. 
Brown  read  the  answer.)  The  actions  were  instituted  on 
joint  bonds  against  the  administrators  of  the  surety,  and 
were  tried  the  last  time  in  1820 ;  at  least,  they  were  to 
be  considered  as  joint  bonds  under  the  decisions  which 
had  then  been  made  :  and  in  accordance  with  those  decis- 
ions, the  respondent  charged  the  jury  in  favor  of  the  de- 
fendant. Was  the  charge  right,  or  was  it  wrong?  I  care 
not  what  the  decisions  of  the  Supreme  Court  have  been 
since ;  1  know  what  the  decisions  uniformly  were  prior 
to  1823,  when  the  case  of  Geddes  v.  Hawk  was  deter- 
mined, giving  us  the  new  law  on  the  subject.  My  inquiry 
is  as  to  the  motive.  Is  there  anything  to  impeach  his 
motives  in  charging  ?  It  is  sought  for  in  vain  in  the 
evidence!  It  has  no  existence  even  in  the  charge!  Shall 
we  be  told,  because  a  different  determination  has  since 
been  had  in  your  Supreme  Court ;  that  therefore,  the  re- 
spondent has  been  guilty  of  a  misdemeanor  in  office? 
Sir,  the  laws  of  Draco  and  Caligula,  were  humane  com- 
pared with  such  a  construction  of  ours.  Be  it  remem- 
bered too,  that  Mr.  Binney,  who  was  consulted  by  the 
plaintiff,  concurred  in  opinion  with  the  respondent.  But 
the  allegation  is,  that  the  respondent  did  not  file  his 
charge.  We  say,  he  never  was  requested  so  to  do,  or  if 
requested — never  heard  the  request,  which  is  about  the 
same  thing.  What  is  the  evidence  on  this  subject  ? 


IMPEACHMENT  OF  JUDGE  PORTER.  83 

Mr.  King  thinks  the  point  in  the  case  was,  whether  the 
bonds  were  joint  or  not ;  that  perhaps  there  might  have 
been  others,  but  that  he  does  not  recollect  them  ;  that  the 
court  charged  the^jury,  that  the  bonds  were  joint,  and 
therefore  the  plaintiff  could  not  recover ;  that  it  is  fully 
impressed  upon  his  mind,  that  the  judge  was  requested 
to  file  his  charge,  but  whether  that  request  was  made  by 
himself,  or  by  his  colleague,  Mr.  John  Evans,  he  cannot 
say.  That  having  directed  a  writ  of  error  to  be  taken, 
he  requested  Mr.  Binney  not  to  issue  the  writ,  unless  he 
thought  the  opinion  wrong.  That  on  examining  the 
records,  he  did  not  find  the  opinion  filed.  At  the  suc- 
ceeding term,  he  or  his  colleague,  Mr.  Evans,  mentioned 
the  matter  to  the  court.  Judge  Porter  did  not  seem  to 
have  a  distinct  recollection  of  the  application  having  been 
made,  and  desired  that  the  matter  might  go  off  until  Mr. 
Smith  would  be  there.  That  at  the  following  court,  Mr. 
Smith  denied  that  any  application  had  been  made  to  file 
the  charge;  and  that  Judge  Porter  having  no  recollection 
himself  of  the  request  to  file  the  charge,  refused  to  do  so, 
contrary  to  Mr.  Smith's  consent.  That  upon  consulting 
Mr.  Binney  afterwards,  Mr.  B.  said  the  charge  of  the 
court  was  correct ;  and  the  parties  abandoned  all  idea  of 
taking  the  case  up. 

The  testimony  of  Mr.  Daniel  Helfrich,  the  plaintiff  in 
the  suit,  amounts  to  nothing  ;  for  in  truth,  according  to 
his  own  account,  he  knows  nothing,  except  that  he  lost 
his  cause ;  and  he  seems  to  think  that  the  respondent  was 
the  occasion  of  it. 

The  attorney  general,  Mr.  Smith,  to  whose  cool,  de- 
liberate and  candid  testimony,  I  have  more  than  once 
had  occasion  to  refer  with  pleasure,  gives  us  a  very  clear 
and  distinct  account  of  this  matter.  He  is  able  to  give 
you  all  the  particulars  in  relation,  as  well  to  the  nature 
of  the  actions,  as  to  the  defence  taken,  arid  the  facts 
which  transpired  at  each  trial.  He  tells  you  that  there 
were  two  points  made : — 1st.  That  the  bonds  were  joint, 


84  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

and  the  defendant's  intestate,  a  mere  surety;  and  2d.  That 
the  plaintiff'  had  given  time  to  Knerr,  the  original  debtor, 
without  the  assent  of  Seip.  From  his  evidence,  it  must 
be  clear,  that  no  request  to  file  the  charge  was  made.  He 
says  he  did  not  hear  it ;  that  his  opportunities  of  hearing 
were  at  least  as  good  as  those  of  the  respondent ;  and 
what  induces  him  to  believe  it  could  not  have  been  made, 
is  the  fact,  that  when  he  cited  the  authority  from  2d 
Browne's  Reports,  Mr.  J.  Evans  gave  up  the  case,  saying, 
if  that  be  the  law,  our  case  is  lost ;  and  at  the  ensuing 
May  Term,  1821,  Mr.  Evans  appealed  to  his  liberality, 
and  requested  him  to  consent  to  the  charge  being  filed. 
Mr.  Smith  refused,  and  the  respondent  not  recollecting 
either  the  request  or  the  language  used  in  his  charge,  de- 
clined doing  anything  except  by  consent.  Mr.  King  will 
not  say  the  respondent  heard  the  request.  He  is  uncer- 
tain as  to  who  made  it,  if  it  was  made.  Mr.  Smith  says 
he  did  not  hear  it,  and  he  thinks  he  must  have  heard  it, 
had  it  been  made.  The  respondent  says  he  did  not  hear 
it — and  the  subsequent  conversation  of  the  three  counsel, 
resulting  in  Mr.  Smith's  refusal  to  consent — all  show 
that  there  could  have  been  no  legal  right  existing  to 
require  it.  What  said  Mr.  Evans?  He  appeals  to  the 
attorney  general's  liberality,  which  he  need  not  have 
done,  had  it  not  been  a  favor  asked  of  him. 

Some  of  the  jurors,  it  seems,  had,  in  one  of  Mr.  Evans's 
odd  humors,  been  subpoenaed  to  attend  at  the  May  Term, 
1821,  to  inform  the  court  what  had  been  given  them  in 
charge,  in  the  December  preceding.  The  jury  are  to  be 
the  Magnus  Apollo,  it  would  seem,  throughout  this  busi- 
ness. 

I  dismiss  this  subject  with  observing,  that  the  facts 
charged,  have  not  been  substantiated ;  and  that  if  they 
had,  they  exhibit  no  wilful  violation  of  duty,  no  corrupt 
or  evil  motive. 

The  eighth  article  has  been  abandoned  by  the  prosecu- 
tion. 


IMPEACHMENT  OF   JUDGE   PORTER.  85 

The  ninth  article  embraces  all  the  remaining  matter ;  for 
the  other  articles  are  but  specifications  of  the  general 
charge  contained  in  the  commencement  of  this :  "  that  the 
respondent  threatened,  intimidated,  and  insulted  his  asso- 
ciate, Justice  Cooper,  on  the  bench  in  open  court." 

[Mr.  Brown  here  read  the  article.] 

This  tribunal,  permit  me  to  say,  does  not  sit  as  a  court 
of  etiquette,  to  regulate  matters  of  form  and  punctilio ; 
to  settle  the  vain  and  empty,  and  if  you  please,  the  un- 
courteous,  or  even  disgraceful  disputes,  between  men  in 
high  stations.  But  the  respondent  claims,  in  the  subject 
matter  of  this  accusation,  to  have  acted  with  strict  cor- 
rectness of  intention,  and  pure  benevolence  of  motive. 
And  if  a  due  regard  for  mercy  is  an  insult  to  an  obdurate 
associate  judge ;  then  indeed  is  the  respondent  guilty ; 
and  he  will  be  found  to  be  the  first  judge,  that  ever  was 
condemned  for  possessing  the  dearest  attribute  of  justice. 

Of  what  kind  of  stuff  must  this  worthy  associate  (to 
whom  it  would  seem  the  respondent  should  in  all  things 
submit  himself  with  due  humility)  be  made,  who  with  a 
dying  boy,  an  aged  grandmother,  and  a  weeping  mother 
before  him — circumstances  which  should  almost  have 
softened  a  heart  of  adamant — pertinaciously  insists  that 
the  boy  shall  lie  in  jail.  He  wants  time — day  after  day — 
to  make  inquiries,  and  talk  the  matter  over  with  Dr. 
Swift ;  in  the  meantime,  says  the  respondent,  the  boy 
may  die,  and  we  will  then  discharge  him — but  to  be 
buried.  The  associate  at  length  agreed  to  discharge  one  ; 
which  he  knew,  or  ought  to  have  known,  could  not  be 
done ;  as  it  was  impossible  to  discharge  the  one  without 
the  other.  Judge  Cooper  should  remember,  that  he  gives 
twice  who  gives  early  ;  and  that  reluctant  charity  has  but 
little  to  recommend  it  over  actual  refusal. 

That  Judge  Cooper  is  in  error  in  this  matter,  is  evi- 
dent, as  well  from  the  other  evidence,  as  from  his  own 
testimony.  He  admits  that  he  was  in  a  passion;  that 
passion  too,  did  not  vanish, — when  he  took  occasion  to 


86  FORENSIC    SPEECHES    OF   DAVID   PAUL   BROWN. 

vanish  from  the  court  house — as  he  saw  Judge  Wagener 
coming  down  the  street.  He  assails  him  out  of  court ; 
tries  to  prejudice  his  mind,  and  prevent  his  joining  in  the 
legal,  humane  and  merciful  course  recommended  by  the 
president.  But  to  the  honor  of  Judge  Wagener,  be  it 
told ;  that,  disdaining  the  cold  hearted  persuasions  of 
Judge  Cooper,  he  came  into  court,  and  concurring  with 
the  respondent,  discharged  the  boys.  The  act  is  proud 
and  honorable  in  its  aspect,  and  calculated  to  redeem  the 
character  of  the  administration  of  justice,  from  the  im- 
putation of  cruelty,  with  which  Judge  Cooper  would 
have  stained  it. 

It  is  exceedingly  doubtful  from  the  evidence,  what  the 
expression  used  by  Judge  Porter  to  Judge  Cooper,  was, 
whether; — "if  the  boy  dies  in  jail,  his  blood  be  on  your 
head,"  or  "  if  the  boy  dies  in  jail,  I  wash  my  hands  of  his 
blood."  Be  it  which  it  may,  it  was  provoked ;  as  well  by 
the  inhuman  conduct,  as  by  the  aggravating  and  irri- 
tating manner  of  Judge  Cooper ;  and  it  but  bespeaks  the 
honest  hearted  integrity  of  a  man,  too  noble  to  disguise 
the-ordinar}'-  feelings  of  nature :  and  for  this,  surely,  he  is 
not  to  be  arraigned  as  a  criminal. 

What  then  of  this  bushel  of  chaff  remains  ? 

Article  tenth.  [Reads  the  article.]  An  action  of  eject- 
ment between  Witchell,  plaintiff,  and  German  and  Levers, 
defendants,  is  tried — a  number  of  legal  questions  arise  in 
the  progress  of  the  trial.  Judge  Porter,  the  president 
judge,  who  has  been  a  lawyer  for  forty  years,  delivers 
the  charge  of  the  court.  Judge  Cooper,  a  practitioner  of 
medicine — who  perhaps  understands  something  of  frac- 
tured bones  and  heads — is  on  the  bench  during  the  trial, 
and  assents  to  the  charge  delivered  by  the  president.  The 
jury  fly  in  the  face  of  the  charge  of  the  court ;  and  the 
associate  declines  interfering  when  an  application  is  made 
for  a  new  trial.  The  counsel  behave  indecorously  to  the 
court ;  and  Judge  Porter  reprimands  them  for  their  be- 
havior. Judge  Wagener,  the  other  associate,  is  sent  for ; 


IMPEACHMENT    OF   JUDGE   PORTER.  87 

and  comes  into  court,  and  concurs  with,  the  president  in 
granting  a  rule  to  show  cause  why  a  new  trial  shall  not 
be  granted.  The  case  is  subsequently  argued,  and  Judge 
Cooper  assents  to  granting  a  new  trial,  assigning  as  his 
reason  for  so  doing,  that  he  did  not  wish  to  give  an  opin- 
ion unfavorable  to  Mr.  Levers. 

When,  or  where  have  we  heard  of  the  respondent  ever 
founding  his  opinion  upon  the  effect  it  was  to  have  on  an 
individual  ?  No,  his  eye  has  ever  been  steady  to  justice — 
knowing  no  distinction  of  persons — punishing  what  was 
wrong,  and  approving  what  was  right,  without  regard  to 
the  actors  in  the  scene. 

As  to  the  second  branch  of  this  accusation,  it  can  only 
be  heard,  as  this  court  haye  decided,  when  taken  in  con- 
nection with  the  respondent's  answer.  If  the  respondent's 
answer  is  to  be  used  for  any  purpose,  it  must  be  used  for 
all  ;  and  taken  altogether,  it  shows  that  Judge  Cooper 
deserved,  upon  the  occasion  alluded  to,  more  than  was 
said  to  him.  It  appears  that  Judge  Porter  was  holding 
the  court  alone ;  that  the  counsel  concerned  were  about 
adjusting  a  cause  upon  the  trial  list;  when  in  comes  doc- 
tor Judge  Cooper — after,  perhaps,  a  morning  round 
among  his  patients — and  without  knowing  what  the 
court  was  doing  ;  but  disposed  to  display  a  great  deal  of 
zeal  for  industry ;  very  insolently  demands  of  the  re- 
spondent, why  he  did  not  attend  to  the  trial  list.  This, 
sir,  was  in  effect  charging  the  respondent — who  had  been 
assiduously  attending  to  his  duty — with  neglecting  the 
public  business;  and  the  charge  made  too,  by  one  who 
only  made  his  appearance  in  court,  as  the  intervals  of  his 
own  vocations  gave  him  time  to  look  in  upon  the  court, 
and  take  his  temporary  station  on  the  bench.  Why,  sir, 
had  he  been  a  master  workman,  and  the  respondent  his 
mere  journeyman,  he  could  not  have  assumed  more  au- 
thority over  him.  What  was  the  respondent  to  do  under 
these  circumstances  ?  Was  he  to  humbly  submit  himself 
to  Judge  Cooper ;  and  mutely  set  about  obeying  his  com- 


88  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

mands,  no  matter  how  injurious  to  the  public  business 
then  transacting  ?  Or  was  he  to  act  as  an  honorable,  high 
minded  officer,  entitled  to  at  least  an  equal  voice  in  the 
administration  of  justice  ?  He  acted  upon  this  occasion, 
as  he  usually  acts — with  propriety  and  becoming  dignity. 
He  mildly  informs  Judge  Cooper  that  "  he  would  thank 
him  for  less  of  his  dictation ;"  and  the  respondent  informs 
you  (and  Judge  Cooper  cannot  deny  it)  that  he  (Cooper) 
apologized  for  his  rudeness.  I  know  that  Judge  Cooper, 
and  his  worthy  coadjutor,  Henry  Jarrett — who,  although 
an  old  man,  is  but  a  young  lawyer — endeavor  to  give 
this  matter  a  somewhat  different  coloring.  Who,  pray, 
constituted  Henry  Jarrett  a  judge  of  manners? — and 
who,  if  there  even  were  incivility  or  rudeness  proved, 
constituted  the  members  of  this  court  judges  of  manners? 
But  the  truth  to  be  collected  from  the  evidence,  and  the 
known  urbanity  and  courteousness  of  Judge  Porter's  be- 
havior, bear  me  out  in  the  statement  which  I  have  given 
you  of  this  transaction.  Judge  Cooper  says  he  was 
abashed.  I  hope  he  was,  for  if  so,  it  shows  he  is  yet 
capable  of  being  convinced  of  error,  and  evincing  a  be- 
coming regret  for  outraging  the  feelings  of  others. 

The  eleventh  article  charges  the  respondent  with  im- 
proper conduct  to  Judge  Cooper,  while  the  case  of  Reese 
v.  Sigman  was  trying  in  the  Common  Pleas  of  Northamp- 
ton county,  at  January  Term,  1822.  In  the  first  place, 
permit  me  to  say,  that  the  testimony  of  Dr.  John  Cooper 
and  Hugh  Ross — the  only  witnesses  for  the  prosecution 
on  this  article — do  not  bear  out  the  facts  as  charged 
against  the  respondent.  The  amount  of  their  allegations 
is — that  Judge  Porter  and  Judge  Wagener,  adopted  one 
view  of  the  case,  and  Judge  Cooper  another.  That  the 
two,  being  a  majority  of  the  court,  the  opinion  delivered 
by  them  was  "  the  opinion  of  the  court ;"  and  that  when 
Judge  Cooper  said  he  was  of  a  different  opinion,  Judge 
Porter  observed,  that  what  he  had  delivered  was  the 
opinion  of  the  court.  Ross  says,  Judge  Porter's  manner 


IMPEACHMENT  OF  JUDGE  POKTEK.          89 

in  making  this  observation  was  angry ;  such  as  a  superior 
would  use  to  an  inferior.  Judge  Cooper,  although  no 
doubt  he  and  Ross  have  compared  notes  on  this  subject, 
is  more  cautious.  He  says,  "I  think  the  judge — rather 
in  an  imperious  tone — in  a  manner  that  excited  a  little 
awe  on  my  mind — observed,  that  it  was  the  opinion  of 
the  court."  I  should  be  cautious  of  giving  much  credence 
to  the  evidence  of  these  witnesses  as  to  manner,  were 
there  no  other  proof.  We  have  seen  them  throughout 
this  cause,  detailing  matters  of  impression,  seen  through 
the  jaundiced  medium  of  their  own  biassed  feelings ;  and 
in  such  matters  it  would  be  dangerous  to  rely  on  either 
of  them. 

But  Colonel  Ihrie,  who  was  concerned  for  the  defend- 
ant, Abraham  Sigman — who  was  her  son  and  agent,  and 
attending  to  the  cause  for  her ;  and  Judge  Wagoner,  who 
was  on  the  bench  during  the  trial,  and  participated  in 
the  proceedings ;  all  tell  you  that  there  was  nothing  offen- 
sive, indecorous,  or  improper  in  the  manner  of  Judge 
Porter  to  Judge  Cooper;  and  that  had  there  been  any- 
thing of  the  kind,  they  must  have  observed  it.  Divest 
this  matter  of  its  false  coloring,  and  the  charge. against 
Judge  Porter  is,  that  he  had  no  right  to  deliver  the 
opinion  of  a  majority  of  the  court  contrary  to  that  of 
Judge  Cooper ;  in  other  words,  that  reversing  all  the 
principles  upon  which  our  government  is  founded,  the 
majority  shall  submit  to  the  minority,  and  that  Judge 
Cooper's  ipse  dixit  is  to  be  the  law  in  Northampton 
county,  no  matter  what  may  be  the  opinion  of  the  two 
other  judges. 

The  twelfth  and  last  article  of  impeachment  has  been 
properly  abandoned,  as  being  too  loose,  vague  and  uncer- 
tain ;  and  also,  perhaps,  because  all  the  evidence  that 
could  have  been  produced  under  it,  has  been  embraced 
under  the  three  preceding  ones. 

In  taking  a  retrospect  of  this  cause,  the  circumstance 
cannot  well  have  escaped  the  attention  of  this  court,  that, 


90  FORENSIC   SPEECHES    OF   DAVID   PAUL    BROWN. 

with  a  few  solitary  and  honorable  exceptions,  the  wit- 
nesses on  the  part  of  the  prosecution  have  come  forward 
under  a  marked  bias  of  feeling,  which  has  disclosed  itself 
in  almost  every  stage  of  the  proceeding. 

Judge  Cooper,  Hugh  Ross  and  Henry  Jarrett,  have 
been  ringleaders  of  this  prosecution  in  Northampton ;  the 
first,  the  party  preferring  the  complaint  in  at  least  four 
of  the  articles  of  accusation  and  impeachment ; — the  sec- 
ond, disappointed  in  the  decision  of  several  suits ;  of  a 
naturally  envious  and  jealous  disposition,  and  always 
"  hating  that  excellence  he  cannot  reach,"  indulging  a 
rancorous  malignity  for  years  against  the  respondent — 
making  and  treasuring  up  jaundiced  notes  and  statements 
of  transactions  which  escaped  the  observation  of  others,  to 
gratify  the  foulest  feeling  that  disgraces  the  human  heart. 
The  third,  the  messenger  of  the  league; — and  in  regard 
to  all  the  evidence  he  has  given,  I  may  make  one  passing 
remark,  and  leave  him  to  that  infamy  he  has  so  richly 
merited.  By  comparing  his  evidence  with  the  articles  of 
impeachment,  you  will  find  that  he  has  just  taken  up  the 
articles  to  each  matter  to  which  he  has  testified,  and 
sworn  exactly  to  the  matters  charged ;  but  when  cross- 
examined,  as  to  time  or  circumstances,  he  knows  nothing; 
and  what  is  rather  singular,  no  one  of  the  witnesses  on 
the  part  of  the  prosecution  or  defence,  saw  him  in  court 
at  the  times  the  transactions  should  have  occurred  to 
which  he  has  testified.  From  this,  and  the  known  char- 
acter of  the  man,  it  is  fair  to  presume,  that  the  first 
knowledge  he  ever  had  of  the  matters  to  which  he  testi- 
fied, he  derived  from  the  articles  of  impeachment  them- 
selves ;  more  especially  as  he  was  in  attendance  last  year 
when  the  committee  of  inquiry  sat,  and  never  testified  to 
a  wor"d  of  the  kind.  Much  has  been  said  of  the  respecta- 
bility and  so  forth  of  Judge  Cooper.  For  aught  I  know, 
he  may  be  considered  a  respectable  man ;  but  surely  it 
can  add  nothing  to  the  respectability  of  any  man's  char- 
acter to  find  him  the  fellow  laborer,  associate  and  boon 


IMPEACHMENT   OF   JUDGE   PORTER.  91 

companion  of  Jacob  W.  Seitzinger,  Hugh  Ross  and  Henry 
Jarrett ! 

Mr.  George  Stroud  and  Mr.  Charles  Davis,  were  both 
professionally  disappointed  :  and  like  many  others  of  their 
profession,  would  endeavor  to  cast  all  the  odium  or  fault 
of  their  want  of  success,  upon  the  judge  who  decided 
against  them.  v 

Reese  need  scarcely  be  mentioned,  but  he  was  a  party  in 
Reese  v.  Sigman,  Commonwealth  v.  Mary  Everhart,  and 
Everhart  v.  Reese ;  poor  fellow,  he  is  calculated  to  do 
little  harm  to  any  one,  no  matter  what  his  wishes  may 
be. 

JBeidleman  and  Haberacker,  are  the  two  respectable 
Allentown  gambling  house  keepers  ;  they  yet  feel  the  lec- 
ture they  so  properly  received. 

Hugh  Bellas  comes  before  you,  as  I  have  already  had 
occasion  to  observe,  with  all  the  feelings  of  a  losing  party  ; 
and  has  given  vent  to  his  embittered  feelings  to  such  an 
extent,  as  to  leave  no  room  for  candid  and  impartial  re- 
collections of  what  actually  did  take  place. 

Even  Mr.  King,  who  is  not  to  be  named  with  the  others, 
has  had  his  professional  disappointments  and  personal 
differences. 

Against  this  evidence  we  have  adduced  a  host  of  candid, 
dispassionate  witnesses ;  who  have  satisfied  you,  I  trust, 
as  to  every  matter  of  charge,  which  was  susceptible  of 
refutation,  or  necessary  to  be  refuted. 

And  in  conclusion :  I  put  the  character  and  public 
services  of  the  respondent — from  his  early  youth,  when 
he  was  found  in  his  country's  ranks  fighting  for  that  lib- 
erty we  now  enjoy,  to  his  present  venerable  age — during 
all  which  period  he  has  been  found  without  spot  and  with- 
out blemish — in  opposition  to  charges  thus  made",  and 
thus  attempted  to  be  sustained.  They  who  would  grap- 
ple with  him,  grapple  with  a  brazen  wall.  He  has  dis- 
covered throughout  his  judicial  career — nay,  throughout 
his  life — a  steadiness  of  purpose  and  an  inflexible  integ- 


92  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

rity  which  never  could  be  shaken  ;  and — with  perhaps  a 
solitary  exception — that  courteousness  and  urbanity  of 
manners — which  is  sworn  by  several  of  the  witnesses 
to  be  his  characteristic — has  never  been  departed  from  in 
sixteen  years.  What  other  judge  in  the  State  could 
stand  a  similar  inquiry,  with  equally  triumphant  success. 
A  firm  and  inflexible  judge,  is  a  blessing  not  to  be  lightly 
prized  ;  for  if  he,  who  is  to  administer  the  laws  of  the  land 
is  to  be  a  pliant  tool,  have  an  eye  to  your  own  rights ! 
Once  establish  this  idea,  and  you  infuse  into  the  bosom 
of  society  a  deadly  poison,  which  carried  throughout 
your  system,  relaxes,  enfeebles  and  ultimately  destroys 
the  whole.  Have  a  care ! — The  decision  of  this  cause  is 
not  a  mere  matter  between  the  respondent  and  his  per- 
secutors. Its  effects  will  be  felt  upon  society  at  large. 
Offer  up  the  respondent  on  the  altar  of  vengeance,  and 
sate  the  prosecutors  in  their  desire  of  his  destruction  ; 
and  mark  me,  less  pernicious  would  be  the  consequences 
to  the  respondent  and  his  family,  than  would  be  the  re- 
sult upon  the  country  and  the  world,  which  now  look 
on. 


CASE  OF  THE 

JOURNEYMEN    TAILORS. 


COMMONWEALTH  v.  JNO.  M.  MOORE  AND  TWENTY-FOUR 
OTHERS. 

In  the  Mayor's  Court  for  the  City  of  Philadelphia,  Sep- 
tember Sessions,  1827,  Hon.  JOSEPH  REED,  Recorder, 
presiding. 

CHARGE— CONSPIRACY. 

The  indictment  in  the  ahove  case  contains  eight  counts, 
and  under  each  count  numerous  overt  acts  are  set  forth. 
The  following  argument,  however,  sufficiently  explains 
the  points  of  the  case,  to  meet  all  the  requirements  of 
the  intelligent  reader,  without  any  prefatory  remarks. 

For  the  Prosecution. 
JOHN  WURTS,  ESQ.,  JOSEPH  R.  INGERSOLL,  ESQ. 

For  the  Defendants. 
WILLIAM  B.  REED,  ESQ.,  DAVID  PAUL  BROWN. 


(93) 


94  FORENSIC    SPEECHES   OP   DAVID   PAUL   BROWN. 


SPEECH  IX 
JOURNEYMEN    TAILORS'    CASE 


WITH  DEFERENCE  TO  TO  UR  HONORS: 

Your  time  and  attention  have  been  so  largely  drawn 
upon,  iu  the  investigation  necessarily  incident  to  the  trial 
of  this  cause,  that  it  can  scarcely  be  expected,  gentlemen 
of  the  jury,  that  you  should  accord  to  me  a  very  atten- 
tive, much  less  an  indulgent  hearing;  but  I  do  expect — 
although  I  found  rny  claim  rather  on  your  liberality 
than  my  own  merits — I  do  expect  a  patient  and  an  impar- 
tial hearing.  The  importance  of  the  case,  upon  which 
you  are  called  to  decide,  requires  it ;  the  interests  of  the 
conflicting  parties,  which  are  committed  to  your  charge, 
solicit  it ;  the  laws  under  which  we  live  and  of  which 
you  are  the  well  approved  ministers,  demand  it ;  and  the 
solemn  obligation  which  you  have  assumed — an  immortal 
tie,  which  at  once  binds  you  to  this  world  and  to  the 
next — imperiously  enforces  it.  In  thus  adverting  to  your 
duties,  the  advocate  is,  not  altogether  involuntarily,  re- 
ferred to  the  discharge  of  his  own.  And  I  regret  much 
to  add  that,  however  safely  I  may  speak  in  your  behalf — 
however  confidently  rely  upon  the  fulfilment  of  your 
duties,  I  am  neither  willing,  nor  do  I  feel  competent  to 
say — without  assuming  that  to  which  I  am  not  entitled 
— that  I  can  so  securely  speak  of  my  own.  The  case 
upon  which  you  are  to  determine  is,  notwithstanding 
all  the  efforts  of  the  eloquent  counsel  opposed  to  us  to 
establish  the  contrary,  one  of  great  magnitude  and 


JOURNEYMEN   TAILOES'   CASE.  95 

importance.  Its  consequences  are  not  to  be  decried, 
nor  its  character  degraded.  You  are  not  to  be  told  that 
the  result  of  this  case  will  be  nothing  more  than  the  im- 
position of  a  trifling,  or  perhaps  a  nominal  penalty,  upon 
these  unfortunate  and  oppressed  men.  Whatever  may 
be  the  penalty,  it  is  unquestionably  to  be  estimated  with 
reference  to  the  situation  and  circumstances  of  the  indi- 
viduals upon  whom  it  is  to  fall ;  and  we  request  you  to 
remember,  what  it  appears  has  been  forgotten  by  the 
counsel,  that  it  is  "  the  last  hair  that  breaks  the  camel's 
back."  Suppose  the  pecuniary  penalty  which  the  gentle- 
man has  thought  proper  to  affix  to  the  alleged  oifence, 
were  even  unimportant ;  are  there  no  other  penalties  ac- 
knowledged than  those  which  reach  the  purse?  Is  it  no 
penalty  to  trample  on  a  fallen  man  ?  Is  it  no  penalty  to 
taunt  the  feelings  of  a  lacerated  and  bleeding  heart  ?  Is 
it  no  penalty  to  take  from  the  poor  man  that  which  is 
the  pride  of  the  rich  as  well  as  the  poor — the  prince  and 
the  peasant — his  jewelled  reputation  ?  To  take  from  his 
children  the  priceless  inheritance  of  a  good  name — to 
brand  him  with  a  mark  as  indelible  as  that  of  Cain, 
and  to  stigmatize  those  who  shall  follow  him  with  in- 
famy— are  these  no  penalties  ?  When  the  gentleman 
looks  to  the  pecuniary  imposition,  it  may,  indeed,  as 
he  said,  be  unimportant ;  but  when  he  connects  wounded 
feeling  and  the  destruction  of  reputation,  dearer  far  than 
life,  and  to  the  poor  and  the  humble  doubly  dear;  be- 
cause with  them  there  is  no  cure  for  a  bleeding  heart  in 
the  weight  of  the  purse :  when  the  cause  is  considered 
in  these  more  extensive  views,  allow  me  to  say,  the  pen- 
alty so  lightly  anticipated,  is  scarcely  to  be  borne.  Let 
us  not  then,  have  this  matter  undervalued. 

Without  treating  any  part  of  this  prosecution  either 
with  indifference  or  want  of  candor,  allow  me  to  say, 
that  the  levity  assumed  on  the  part  of  the  prosecution, 
is  no  unusual  mode  of  crying  "  peccavi"  in  a  cause. 
"  We  have,"  say  they, "  brought  a  case  before  you — it 


96  FORENSIC   SPEECHES   OF   DAVID    PAUL   BRO\VN. 

has  occupied  your  attention,  and  estranged  you  from 
your  families  and  your  business  for  an  entire  week ;  but 
it  is  of  little  consequence,  the  punishment  will  be 
nothing;  jump  at  once  to  a  conclusion,  favorable,  nomi- 
nally favorable  to  the  prosecutors — and  we  are  content 
— justice  is  satisfied."  This  is,  indeed,  a  happy  method 
of  sporting  with  your  time,  your  duty,  your  consciences, 
for  the  benefit  of  the  commonwealth.  If  the  case  be 
thus  worthless,  thus  contemptible,  its  objects  so  mean 
and  disproportionate,  why  has  it  been  originally  wrought 
up  into  such  a  storm  ?  "Why  have  they  thus, 

"  ocean  into  tempest  toss'd 

To  waft  a  feather,  or  to  drown  a  fly." 

"With  these  preliminary  remarks,  let  us  address  our- 
selves more  immediately  to  the  subject  before  us. 

This  is  a  charge  of  conspiracy,  and  may  be  divided,  as 
may  most  subjects,  submitted  to  this  tribunal,  into, 

First,  Matters  of  Law. 

Secondly,  Matters  of  Fact. 

"With  reference  to  the  first  division  of  the  subject,  let 
us  briefly  consider  the  character  of  the  offence,  the 
principles  governing  in  the  construction  of  the  indict- 
ment, and  the  general  law  relating  to  conspiracy ;  under 
which  last  head,  we  may  aptly  embrace  the  authorities  of 
the  opposite  counsel. 

Under  the  second  point  of  inquiry,  we  shall  discuss  the 
facts  relied  upon  to  support,  and  to  resist  the  prosecution ; 
not  being  unmindful  in  our  course,  of  the  situation  of  the 
parties — the  consistency  and  veracity  of  witnesses,  all  of 
which,  as  the  court  will  tell  you,  are  proper  and  legiti- 
mate subjects  of  remark.  It  is  not  my  intention  rigidly 
or  severely  to  quadrate  my  course  by  these  points ;  but 
merely  to  resort  to  them  as  stars  by  which  to  steer  upon 
this  dark,  and  doubtful,  and  perilous  ocean.  Arrange- 
ment and  system  are  ever  the  friends  of  truth  ;  and  if 
they  deserve,  will  secure  success. 


JOURNEYMEN    TAILORS     CASE.  97 

"What,  then,  is  a  CONSPIRACY  ?  It  may  be  defined  to  be 
"  an  agreement  between  two  or  more  persons  to  do  an  un- 
lawful act,  or  to  do  a  lawful  act  in  an  unlawful  manner, 
or  by  unlawful  means."  And  the  requisites  of  the  indict- 
ment are  implied  by  the  definition  of  the  offence ;  and  in 
all  reason,  as  well  as  all  law,  the  indictment  must  con- 
form thereto.  It  is  not  sufficient  that  the  witnesses 
should  prove  a  conspiracy — that  conspiracy  must  be  ex- 
hibited upon  the  face  of  the  record.  Nor  is  it  alone  suffi- 
cient that  the  indictment  should  be  perfect ;  the  facts 
must  also  be  so — they  must  mutually  impart  and  imbibe 
strength — reciprocally  borrow  and  reflect  light.  One 
offence  is  not  sustained  by  proof  of  another,  any  more 
than  it  is  supported  by  defective  proof  of  the  same. 
When  the  indictment  is  insufficient — it  matters  not  what 
the  facts  may  be — it  may  be  demurred  to,  or  taken  ad- 
vantage of  upon  the  trial;  or  after  the  trial,  upon  a  mo- 
tion in  arrest  of  judgment. 

Overt  acts  may  or  may  not  be  important,  according  to 
the  character  of  the  charge ;  if  the  offence  consist  in  un- 
lawful means  or  manner,  the  overt  act  is  generally  neces- 
sary. At  all  events,  the  means  and  manner  must^be  set 
forth.  When  the  act  alleged  is  clearly  unlawful,  unlaw- 
ful means  need  not  be  stated ;  and  if  the  act  be  not  ille- 
gal, and  no  illegal  means  stated,  there  is  no  conspiracy. 
If  this  doctrine  requires  support,  it  will  be  found  in  the 
City  Hall  Recorder,  vol.  3,  page  59. 

Again — a  conspiracy  to  do  impossible  acts  is  not  sus- 
tainable, unless  when  rendered  culpable  from  the  means 
contemplated.  Hence  an  agreement  to  extinguish  the 
stars — to  blow  up  the  moon — to  swallow  the  ocean — to 
darken  the  sun,  or  to  do  any  other  impossible  thing, 
unless  the  means  to  be  used  are  illegal,  is  a  subject  for  a 
commission  of  lunacy  to  decide  upon,  and  not  a  criminal 
court. 

Further — a  confederacy  is  not  necessarily  criminal.  A 
conspiracy  to  maintain  the  laws — to  resist  oppression — to 

7 


98  FOREXSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

protect  rights,  though  that  protection  may  interfere  with 
the  views  of  thousands — to  discharge  our  duty  to  this 
world  and  the  next,  is  neither  illegal  in  the  act  contem- 
plated, nor,  in  the  present  case,  in  the  means  adopted. 

All  this  even  by  the  common  law — but  let  us  recross 
the  Atlantic,  and  come  nearer  home.  The  common  law 
upon  this  subject  must  be  received  here  with  great  cau- 
tion— with  abundant  allowance — and  so  modified  as  to  be 
adapted  to  the  principles  and  policy  of  our  government. 
It  is  part,  and  in  criminal  cases,  the  worst  and  most  bar- 
barous part  of  our  inheritance  from  our  parent  stock.  In 
Great  Britain  it  is  a  necessary  engine  of  power.  It  is  es- 
sential to  check  and  subdue  their  mechanics — their  manu- 
facturers— their  artisans ;  otherwise  every  man  would 
swell  himself  beyond  his  assigned  limits.  The  law,  in  its 
administration,  is  somewhat  swerved  to  their  purpose — 
"  to  do  great  good  they  do  a  little  harm,"  and  too  often 
build  up  the  throne  of  the  monarch  upon  the  bleeding 
hearts  of  his  subjects.  Upon  the  contrary,  no  such  re- 
straint is  required  by  us — here  every  man  is  a  monarch 
legitimately  crowned  by  the  laws  under  which  he  lives — 
here  people  of  the  classes  referred  to  are  rather  to  be  en- 
'couraged  and  sustained,  than  depressed.  They  are  of  the 
utmost  importance  to  the  character  and  wealth  of  the 
State — of  the  United  States.  Bat  what  says  Judge  Gib- 
son ?  The  authority  referred  to  upon  this  subject  by  our 
opponents,  is  exactly  what  we  contend  for. 

If  therefore,  I  say,  this  portion  of  the  common  law  is 
to  be  engrafted  upon  the  law  of  this  land,  it  must  be 
modified  and  regulated  by  the  policy  of  the  laws  of  this 
land,  and  then  it  may  be  adopted.  And  when  adapted 
to  the  character  of  the  people  here,  it  may  then  be  said 
to  be  equally  cogent,  here  as  there.  That  reason,  which 
operates  without  regard  to  difference  of  circumstances 
and  situations,  becomes  madness. 

Why,  may  it  please  your  honors,  conspiracy,  as  con- 
sidered in  England,  is  scarcely  less  grievous  than  impress- 


JOURNEYMEN   TAILORS'   CASE.  99 

ment,  and  neither  has  anything  to  plead  but  necessity  and 
expediency — neither  reason  nor  justice  will  sustain  them. 
But  if,  as  I  have  said,  this  doctrine  were  to  be  extended 
to  this  country  in  all  its  force,  and  with  all  its  majesty 
and  might,  the  defendants  could  not  be  convicted,  plainly 
for  the  reason  suggested  by  my  learned  friend,  the  oppo- 
site counsel,  who  has  quoted  Judge  Gibson's  opinion,  from 
the  Journal  of  Jurisprudence. 

The  gentleman  has  turned  to  page  226 ;  and  that  is  the 
page  to  which  I  will  call  your  attention. 

"  In  no  book  of  authority  has  the  precise  point  before 
me  been  decided.  Rex  v.  The  Taylors  of  Cambridge  is 
found  in  a  book  (8  Mod.  10)  which  can  claim  nothing 
beyond  the  intrinsic  evidence  of  reason  and  good  sense 
apparent  in  the  cases  it  contains.  In  the  trial  of  the 
Boot  and  Shoemakers  of  Philadelphia,  there  was  no  general 
principle  distinctly  asserted,  but  the  case  was  considered 
only  in  reference  to  its  particular  circumstances,  and  in 
these  it  materially  differed  from  that  now  under  consider- 
ation :  And  in  the  trial  of  the  Journeymen  Cordwainers 
of  New  York,  the  mayor  expressly  omits  to  decide 
whether  an  agreement  not  to  work,  except  for  certain 
wages,  would  be  indictable  per  se.  There  are,  indeed,  a 
variety  of  British  precedents  of  indictments  against 
journeymen  for  combining  to  raise  their  wages ;  and  pre- 
cedents rank  next  to  decisions  as  evidence  of  the  law ; 
but  it  has  been  thought  sound  policy  in  England  to  put 
this  class  of  the  community  under  restrictions  so  severe, 
by  statutes  that  were  never  extended  to  this  country, 
that  we  ought  to  pause  before  we  adopt  their  law  of  con- 
spiracy as  respects  artisans,  which  may  be  said  to  have, 
in  some  measure,  indirectly  received  its  form,  from  the 
pressure  of  positive  enactment,  and  which  therefore  may 
be  entirely  unfitted  to  the  condition  and  habits  of  the 
same  class  here.  An  investigation,  then,  of  the  principles 
of  the  law  which  declares  the  offence,  becomes  absolutely 
necessary  to  a  correct  decision  in  this  particular  instance ; 


100  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

and  I  at  once  proceed  to  it:  Whether  there  are  not  ques- 
tions of  fact  proper  for  the  considerations  of  a  jury,  as 
material  to  the  relator's  defence,  may,  in  case  I  find  my- 
self bound  to  remand  them,  be  a  fit  question  for  consider- 
ation. 

"  The  unsettled  state  of  the  law  of  conspiracy  has 
arisen,  as  was  justly  remarked  in  the  argument,  from  a 
gradual  extension  of  the  limits  of  the  offence ;  each  case 
having  been  decided  on  its  own  peculiar  circumstances, 
without  reference  to  any  pre-established  principle.  When 
a  combination  had  for  its  direct  object  to  do  a  criminal 
act;  as  to  procure  the  conviction  of  an  innocent  man  (the 
only  case  originally  indictable,  and  which  afterwards 
served  as  a  nucleus  for  the  formation  of  the  entire  law  of 
the  subject),  the  mind  at  once  pronounced  it  criminal. 
So  where  the  act  was  lawful,  but  the  intention  was  to 
accomplish  it  by  unlawful  means  ;  as  where  the  conviction 
of  a  person  known  to  the  conspirators  to  be  guilty,  was 
to  be  procured  by  any  abuse  of  his  right  to  a  fair  trial  in 
the  ordinary  course.  But  when  the  crime  became  so  far 
enlarged  as  to  include  cases  where  the  act  was  not  only 
lawful  in  the  abstract,  but  also  to  be  accomplished  exclu- 
sively by  the  use  of  lawful  means,  it  is  obvious  that  dis- 
tinctions as  complicated  and  various  as  the  relations  and 
transactions  of  civil  society,  became  instantly  involved, 
and  to  determine  on  the  guilt  or  innocence  of  each  of  this 
class,  an  examination  of  the  nature  and  principles  of  the 
offence  became  necessary.  This  examination  has  not  yet 
been  very  accurately  made ;  for  there  is,  in  the  books,  an 
unusual  want  of  precision  in  the  terms  used  to  describe 
the  distinctive  features  of  guilt  or  innocence.  It  is  paid 
the  union  of  persons  in  one  common  design  is  the  gist  of 
the  offence ;  but  that  holds  only  in  regard  to  a  supposed 
question  of  the  necessity  of  actual  consummation  of  the 
meditated  act ;  for  if  combination  were,  in  every  view, 
the  essence  of  the  crime,  it  would  necessarily  impart 
criminality  to  the  most  laudable  associations.  It  is  said 


JOURNEYMEN   TAILORS'   CASE.  101 

in  Leach's  note  to  Hawkins,  b.  1,  ch.  72,  §  3,  that  the  con- 
spiracy is  the  gist  of  the  charge,  and  that  to  do  a  thing 
lawful  in  itself  by  conspiracy  is  unlawful ;  but  that  is 
begging  the  very  question,  whether  a  conspiracy  exists, 
and  leaves  the  inquiry  of  what  shall  be  said  to  be  doing 
a  lawful  act  by  conspiracy,  as  much  in  the  dark  as  ever. 
Mr.  Chitty,  in  his  Criminal  Law  (vol.  3,  page  1139),  the 
best  compilation  on  the  subject  extant,  very  truly  says 
there  are  many  cases,  in  which  an  act  would  not  be  cog- 
nizable by  law  if  done  by  an  individual,  that  would 
neverthe  ess,  be  the  subject  of  an  indictment,  if  effected 
by  several  with  a  joint  design  :  yet  he  too,  says  the  offence 
depends  on  the  unlawful  agreement  and  not  on  the  act 
which  is  to  follow  it :  the  act  when  done  being  but  evi- 
dence of  the  agreement.  From  this  it  mi^ht  be  inferred 

«-  d> 

that  the  act  can  operate  only  to  show  that  an  agreement 
of  some  sort  has  taken  place,  but  not  by  its  nature  or  ob- 
ject to  stamp  the  character  of  guilt  on  it ;  but  Chitty 
himself  admits  that  it  is  impossible  to  conceive  a  combi- 
nation, merely  as  such,  to  be  illegal.  It  will  therefore  be 
perceived  that  the  motive  for  combining,  or,  what  is  the 
same  thing,  the  nature  of  the  object  to  be  attained  as  a  con- 
sequence of  the  lawful  act  is,  in  this  class  of  cases;  the  dis- 
criminative circumstances^  Where  the  act  is  lawful  for 
an  individual,  it  can  be  the  subject  of  a  conspiracy  when 
done  in  concert,  only  where  there  is  a  direct  intention  that 
injury  shall  result  from  it,  or  where  the  object  is  to  benefit 
the  conspirators  to  the  prejudice  of  the  public  or  the  op- 
pression of  individuals,  and  where  such  prejudice  or  op- 
pres-ion  is  the  natural  and  necessary  consequence." 

In  the  trial  of  the  Journeymen  Shoemakers  of  Phila- 
delphia, the  recorder,  a  lawyer  of  undoubted  talents, 
instructed  the  jury  that  it  was  "no  matter  what  the  de- 
fendants' motives  were,  whether  to  resist  the  supposed  op- 
pression of  their  masters,  or  to  insist  upon  extravagant 
wages  ; "  but  this,  although  perfectly  true,  as  applicable 
to  that  case,  where  the  combination  was  intended  to 


102  FOKENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

coerce — not  only  the  employers,  but  third  persons — is  not 
of  universal  application.  A  combination  to  resist  oppres- 
sion, not  merely  supposed  but  real,  would  be  perfectly  in- 
nocent: for  where  the  act  to  be  done  and  the  means  of 
accomplishing  it  are  lawful,  and  the  object  to  be  attained 
is  meritorious,  combination  is  not  conspiracy. 

Now  I  will  change  the  sides  of  the  question,  and  if  I 
do  not  convict  Robb  &  Winebrener,  then  the  defendants 
deserve  to  be  convicted.  And  we  will  furnish  ourselves 
with  arms  and  ammunition  out  of  the  enemy's  own  camp 
— the  very  means  which  our  enemies  had  themselves  pro- 
vided. 

"Well,  but,  says  the  gentleman,  certainly  if  you  will  not 
allow  us  anything  from  Judge  Gibson's  opinion,  you  will 
not  deny  us  the  Pittsburg  case.  But  I  will  deny  it;  for 
that  case  and  ours  are  the  very  antipodes  of  each  other. 
They  were  journeymen  to  be  sure,  but  they  might  have 
been  readily  mistaken  for  the  masters  in  the  present  case. 

I  say  Robb  &  Winebrener  were  the  men  indicted  there 
— virtually  the  men,  not  the  men  in  name  nor  quality  ; 
but  in  point  of  principle  they  were  the  same.  And  to 
show  that  it  was  the  case  of  Robb  &  Winebrener,  I  refer 
to  the  indictment.  The  Pittsburg  indictment  may  have 
been  copied  by  our  friend,  but  it  does  not  follow  that 
they  copied  the  Pittsburg  facts  ;  for  after  setting  forth 
the  names  of  some  score  of  individuals,  it  proceeds: 
*'  that  they  unlawfully  conspired  and  agreed  together, 
to  form  and  associate  themselves  into  a  society  or  com- 
bination, and  then  and  there  did  with  like  force  and 
arms  and  in  like  manner,  form  and  associate  themselves 
together,  in  pursuance  and  furtherance  of  said  combina- 
nation,  conspiracy,  confederacy  and  agreement,  into  a 
society  and  combination,  and  did  enact  certain  by-laws, 
rules  and  regulations,  by  whicb  it  was  agreed  by  them 
the  said  conspirators,  that  they  would  not  work  in  the 
employment  or  shop  of  any  master  cordwainer  in  the 
said  borough,  who  had  in  his  employment  any  journey- 


JOURNEYMEN   TAILORS'   CASE.  103 

men  cordwainers  who  were  not  members  of  their  said 
society  ;  and  who  did  not  conduct  himself  according  to 
their  said  by-laws,  rules  and  regulations — that  they 
would  not  do  or  perform  any  work  as  journeymen  cord- 
wainers, unless  for  such  prices  as  they  the  said  conspira- 
tors should  agree  upon  and  regulate — that  they  would 
not  permit  any  journeymen  cordwainers  who  were  mem- 
bers of  said  society,  to  work  in  the  employment  of  any 
person,  unless  for  such  wages  as  the  said  society  should 
agree  upon  and  regulate.  And  that  they  the  said  con- 
spirators, would  withdraw  from  the  service  and  employ- 
ment of  any  master  cordwainer  in  said  borough,  who 
would  not  pay  them  such  wages  as  they  in  their  said 
society  might  agree  upon  and  regulate,  or  who  would  em- 
ploy in  their  shops  or  service,  any  journeyman  cord- 
wainer who  was  not  a  member  of  their  said  society,  who 
had  been  expelled  therefrom,  or  did  not  comply  with  all 
their  by-laws,  rules  and  regulations." 

But,  the  gentlemen  are  so  led  away  with  the  idea  of  a 
society,  that,  finding  societies  in  both  cases,  they  took  it 
for  granted  the  offence  must  be  the  same. 

I  think  in  the  course  of  the  proof  it  was  made  to  ap- 
pear, that  they  had  changed  the  price  of  making  boots, 
from  $1.75  to  $3.50,  thus  raising  the  price  and  departing 
from  the  old  bill.  Now  will  any  man  tell  me  that  jour- 
neymen entering  into  an  agreement  to  do  that  which 
they  were  legally  bound  to  do,  will  meet  a  case  of  this 
character  Robb  &  Winebrener  occupy  the  place  of  these 
men  who  refused  to  do  work,  unless  upon  payment  of 
higher  wages. 

They  insist  on  cutting  these  men  into  mincemeat — 
they  insist  on  crushing  them  with  the  hard  hand  of  vexa- 
tious need.  They  had  conformed  to  this  agreement,  they 
had  ratified  it  by  their  practice;  and  now  they  think 
proper  to  depart  from  it,  and  to  indict  these  men  for  not 
submitting  to  their  imposition.  Suppose  they  had  re- 
duced to  six  cents  their  daily  wages;  these  individuals,  I 


104:  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

suppose,  must  either  submit,  or  starve,  or  be  prosecuted  : 
they  would  have  said,  "  if  you  demand  seven  dollars,  we 
will  pay  you  seven  dollars,  but  the  penalty  of  poverty 
shall  be  your  portion — we  will  advertise  you,  and  all  mas- 
ter tailors  shall  close  their  doors  against  you."  The  law 
should  be  more  severe  with  masters  than  with  men,  and 
that  in  proportion  to  the  means  of  individuals  to  encroach 
upon  its  sacred  limits.  The  masters  are  more  dangerous 
than  the  men,  as  was  well  observed  by  my  respectable 
colleague ;  for  although  it  does  not  bear  directly  upon 
this  case,  it  bears  upon  the  opposite  party,  and  is  there- 
fore perfectly  apposite. 

There  is  no  resisting  the  groans  of  a  wife  and  the  cries 
of  her  infants — this  is  a  law  which  nature  has  inscribed 
on  our  hearts,  and  which  it  is  neither  in  our  inclination 
nor  ability  to  resist ;  yet  the  counsel  for  the  common- 
wealth has  ventured  to  appeal  to  your  feeling.  The 
plaintiffs  are  the  offenders — they  have  conspired  to  re- 
duce the  wages,  and  nothing  saves  them  from  punish- 
ment but  the  want  of  an  indictment. 

I  was  about  to  observe  that  combinations  of  this  sort 
are  more  dangerous  in  masters  than  in  men,  because 
poverty  is  a  law  which  man  cannot  resist.  Masters  have 
the  means,  and  though  they  may  exact  from  their  cus- 
tomers any  price  which  they  please,  there  is  never  a 
thought  of  their  being  conspirators,  while  they  are 
grinding  down  the  men  whom  they  employ,  to  little 
more  than  nothing,  and  pocketing  their  services.  They 
can  hold  out,  they  can  persist  in  their  determinations  ;  for 
they  have  already  accumulated  a  sufficiency  to  confirm 
them  in  their  obduracy.  And  again,  the  effects  are  more 
pernicious  because  they  are  more  generally  felt ;  for  one 
master  may  perhaps,  have  twenty  journeymen.  The  sug- 
gestion of  this  cannot  be  too  much  dwelt  upon,  for  even 
journeymen  will  some  day  become  masters,  or  they  look 
to  become  so,  for  "  hope  bears  us  through,  nor  quits  us 
at  the  last."  Every  journeyman  expects  to  become  a 


JOURNEYMEN   TAILORS'   CASE.  105 

master — it  is  the  regular  line  of  preferment ;  but  few 
masters  expect  again  to  become  journeymen.  The  jour- 
neymen, therefore,  having  a  view  to  their  subsequent  ele- 
vation, are  less  dangerous  in  their  opposition  to  the  laws 
— they  take  care  not  to  affect  their  character.  But 
when  the  masters  form  a  combination,  they  have  no 
regard  to  the  situation  of  their  journeymen,  because 
they  never  expect  to  share  with  them  in  their  perils,  nor 
pains  ;  nor  can  they  sympathize  with  them  in  their  lia- 
bility to  evil,  or  susceptibility  of  good. 

I  know,  and  am  happy  to  say  it,  that  I  address  those 
who  have,  in  all  probability,  many  of  them,  passed 
through  the  different  grades  to  promotion — and  a  pro- 
motion which  they  now  enjoy  as  they  ought.  But  will 
you  kick  down  the  ladder  of  your  own  greatness — will 
you  turn  your  backs  upon  those  who  are  engaged  in  the 
same  virtuous  struggle  ?  Is  it  not  much  more  mag- 
nanimous for  you  to  avow  to  the  world, that  you  have 
erected  your  own  fortunes,  and  have  not  forgotten  it,  but 
that  you  sympathize  with  those  who«  are  erecting  theirs, 
in  the  same  laudable  pursuit. 

Again,  we  are  turned  to  another  indictment  in  a  sister 
State — we  must  be  assailed  somewhere,  and  if  Pittsburg 
won't  reach  us,  New  York  must.  But  let  us  see  the  in- 
dictment ;  what  do  the  counts  set  forth  ?  These  resemble 
strongly  the  Pittsburg  case — but  ours  not  at  all.  The 
charge  is — having  enumerated  the  persons  by  name — of: 
"  designing  and  intending  to  form  and  unite  themselves 
into  an  unlawful  club  and  combination,  and  to  make  and 
ordain  unlawful  by-laws,  rules  and  orders  among  them- 
selves, and  thereby  to  govern  themselves  and  other  work- 
men in  said  art,  and  unlawfully  and  unjustly  to  extort 
great  sums  of  money  by  means  thereof."  Second.  "  That 
none  of  the  said  conspirators,  would  work  for  any  master 
or  person  whatsoever  in  the  said  art,  &c.,  who  shall  em- 
ploy any  workmen,  &c.,  who  shall  thereafter  infringe  or 
break  any  or  either  of  the  said  unlawful  rules,  orders 


106  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

or  by-laws."  Third.  "  That  they  would  not  work  for 
any  master  or  person  who  should  employ  any  work- 
man, &c.,  who  should  break  any  of  their  by-laws,  un- 
less such  workman,  &c.,  should  pay  to  the  club  such 
sum  as  should  be  agreed  on,  as  a  penalty  for  the  breach 
of  such  unlawful  rules,  orders  or  by-laws ;  and  that  they 
did,  in  pursuance  of  the  said  conspiracy,  refuse  to  work 
and  labor  for  James  Corwin  and  Charles  Aimes,  because 
they,  C.  and  A.  did  employ  one  Edward  Whitess,  a  cord- 
wainer  (alleging  that  the  said  E.  "W.  had  broken  one  of 
such  rules  and  orders,  and  refused  to  pay  two  dollars,  &c.; 
as  a  penalty  for  breaking  such  rules  and  orders),  and  con- 
tinued in  refusing  to  work,  &c.,  for  C.  and  A.  until  the 
said  C.  and  A.  discharged  the  said  E.  W.,"  &c.,  &c. 
Fourth.  "  Wickedly,  and  intending  unjustly,  unlawfully, 
and  by  INDIRECT  MEANS,  to  impoverish  the  said  Edward 
"Whitess,  and  hinder  him  from  following  his  trade,  did  con- 
federate, conspire,  &c.,  by  wrongful  and  indirect  means,  to 
impoverish  the  said  E.  W.,  and  to  deprive  and  hinder 
him  from  following  his  said  art,"  &c. 

Thus,  without  a  single  observation,  you  perceive  that 
the  charge  there  and  here  are  of  an  opposite  character. 

Having  inquired  into  the  nature  of  this  offence,  the 
general  principles  of  law  bearing  upon  it,  and  the  particu- 
lar character  of  the  charge  against  the  defendants,  let  us 
next  inquire, 

What  are  the  facts  of  this  case — in  other  words,  how  is 
this  volume  sustained  by  the  evidence  ?  For  after  all, 
this  is  the  most  important  branch  of  the  cause — "  To  this 
complexion  we  must  come  at  last."  Upon  casting  the  eye 
here,  placing  the  indictment  out  of  sight,  and  forgetting 
who  are  said  to  have  committed  the  offence,  honest 
nature  at  once  asks,  who  are  the  alleged  conspirators, 
the  master,  or  the  men  ?  Let  us,  in  answering  this  in- 
quiry, look  to  the  origin  of  the  transaction — the  more  im- 
mediate origin.  Is  this  prosecution  founded  in  the  pur- 
suit of  justice,  or  in  the  gratification  of  avarice  and 


JOURNEYMEN   TAILORS*   CASE.  107 

revenge  ? — two  of  the  meanest,  as  well  as  the  worst  pas- 
sions that  agitate  the  human  breast.  Why  is  it  that  Mr. 
"Winebrener  is  thus  clad  in  the  panoply  of  the  law,  and 
mounted  upon  the  broad  shoulders  of  the  commonwealth  ; 
is  it  to  spy  into  abuses  that  have  been  practiced  upon 
the  State,  or  is  it  to  convert  the  thunders  of  the  law  to 
his  own  selfish  purpose? — I  say  it  is  the  latter.  He 
commits  an  outrage  upon  Mr.  Boner,  one  of  the  defend- 
ants, upon  a  mere  "  cock  and  bull  story  "  of  the  naval  hero 
Mr.  Chamberlain,  who  permits  no  opportunity  to  escape, 
from  the  beginning  to  the  conclusion  of  this  case,  of  ex- 
hibiting his  fidelity,  at  the  expense  of  his  courage.  Mr. 
AVinebrener  is  the  first  offender,  and  is  bound  over:  then, 
and  for  the  first  time,  as  his  counsel  admit,  he  thinks 
of  binding  over  the  defendants  ;  he  first  charges  six,  next 
twelve,  and  increase  of  appetite  still  growing  by  what  it 
led  on,  he  finally  charges,  twenty-five.  After  this,  al- 
though it  certainly  cannot  be  said  of  him  as  was  said  of 
Paul,  that  too  much  learning  has  made  him  mad — un- 
doubtedly,we  cannot  but  perceive,  that  too  much  malice 
has. 

Having  swayed  dominion  over  his  own  shop,  he  en- 
larges it  to  his  pavement — then  extends  it  to  all  Chestnut 
street ;  and  not  satisfied  with  this,  carries  his  authority 
to  assail  and  beat  these  men  wherever  they  may  be 
found — holds  them  all  in  subjugation;  and  emphatically, 
at  last  becomes  the  self-created  "  Lord  of  the  Bright 
City."  Chamberlain  is  confederated  with  him,  as  well 
as  his  partner,  in  this  assumption  of  authority — in  this 
oppression  of  the  defendants — in  this  violation  of  the 
laws ;  and  still  we  are  told  that  they  are  no  conspirators, 
but  that  the  offence  should  be  charged  only  to  these  un- 
fortunate men — men  who,  for  aught  that  appears,  are 
much  more  "  sinned  against  than  sinning." 

Let  us  for  a  moment,  while  upon  this  part  of  the  case, 
turn  our  attention  to  the  particulars  of  the  afiair  with 
Mr.  Boner.  Induced,  as  I  have  said,  by  Chamberlain,  he 


108  FORENSIC    SPEECHES   OP   DAVID    PAUL    BROWN. 

(Winebrener)  approaches  Mr.  Boner,  and  tells  him  he  had 
better  go  about  his  business. — Why  do  you  volunteer  your 
advice,  Mr.  Winebrener — is  not  Mr.  Boner  pursuing  his 
course  home — is  he  not  engaged  in  his  own  business? 
Certainly.  Has  he  interfered  with  you  or  yours?  No. 
He  is  a  poor  rnan,  it  is  true — and  you  have  wealth — he  is 
a  cripple,  and  you  have  not  only  strength,  but  you  are  sup- 
ported by  Mr.  Chamberlain,  who  has  the  JSTemsean  Lion's 
nerve — but  still  you  have  no  right  to  trample  upon  legal 
privileges  —  nor  personal  sanctity.  Mr.  Boner  replies, 
you  are  not  to  dictate  to  me ;  I  am  on  my  road  home, 
but  I'll  walk  where  I  please.  Upon  this  Mr  Winebrener 
shoves  him,  Boner  raises  his  stick — which  he  carried  for 
his  support, being  lame — merely  as  a  defence;  upon  which 
Winebrener  knocks  the  stick  out  of  his  hand,  and  as  an 
additional  proof  of  magnanimity,  strikes  him  over  the 
head.  Well  was  it  that  night  had  spread  her  dark  man- 
tle over  the  blushing  deed.  Not  contented  with  this 
outrage — which,  remember,  he  relates  himself — he  adds 
injury  to  injury,  by  preferring  a  complaint,  some  days 
after,  against  the  man  he  had  assaulted,  before  one  of  the 
neighboring  justices  of  the  peace ;  for  the  praiseworthy 
purpose,  no  doubt,  being  under  the  direction  of  counsel, 
of  counteracting  the  testimony,  which  otherwise  must 
overwhelm  him.  The  binding  over  of  Boner  bears 
strongly  upon  other  parts  of  this  case — it  indicates  the 
disposition  of  the  prosecution — it  shows  an  activity  and 
vigilance  of  spirit  equal  to  any  emergency  that  may  be 
encountered.  The  disposition  and  ruling  passion  of  men 
being  once  ascertained,  it  serves  as  a  key  to  unlock  all 
the  intricacies,  and  unfold  all  the  mysteries  of  the  human 
heart.  The  cruelty  practised  upon  Mr.  Boner,  is  in  ac- 
cordance with  the  prosecutor's  deportment  toward  the 
other  defendants.  Having  dismissed  them  from  his  em- 
ployment, and  taken  measures  (I  mean  no  pun)  to  prevent 
their  being  employed  elsewhere,  he  is  offended  that  they 
should  convene  together  in  the  vicinity  of  his  shop.  "  I 


JOURNEYMEN   TAILORS1    CASE.  109 

have  shut  you  out  of  my  house,  and  out  of  every  other 
house  by  my  influence — and  now  the  wonder  is  that  you 
should  be  found  together  in  the  street" — most  reasonable 
surprise  truly  !  As  well  mi°;ht  every  unfortunate  indi- 
vidual, who  is  a  disbanded  officer,  be  indicted  for  high 
treason  against  the  country  for  which  he  bled,  because 
the  United  States  may  have  left  him  nothing  to  do,  or 
to  hope  for,  but  to  congregate  with  his  former  associates 
in  arms,  in  endless  idleness,  and  sympathetic  misery. 
But  further — these  men  are  not  even  permitted  to  as- 
semble in  the  region  of  the  post  office — not  even  upon 
the  Rialto.  One  is  supposed  to  have  a  private  pique 
against  Mr.  Chamberlain,  and  is  not  allowed  to  speak 
to  him.  They  are  not  allowed  to  communicate  their  own 
grievances  to  an  individual,  to  whom  Winebrener  had 
communicated  his.  He  can  go  to  Mr.  O'Neil  and  relate 
the  story,  but  these  men  may  not.  That  is  the  simple 
explanation  of  this  great  matter  ;  they  have  character, 
and  they  depend  on  it  for  employment,  and  when  Robb 
&  "Winebrencr  had  been  to  stigmatize  them  with  O'Neil, 
they  thought  proper  to  vindicate  themselves.  But  more 
than  this — he  will  not  let  them  stand,  or  walk,  or  speak, 
without  his  leave  ',  but  he  will  speak  himself,  and  boldly 
too!  He  comes  to  the  door  when  Radford  is  walking 
peaceably  by,  and  commences  an  attack  upon  him;  and 
I  wonder  that  in  your  attendance  here,  passing  by  the 
residence  of  this  gentleman,  you  had  not  been  assailed 
and  indicted  also.  It  was  a  public  street  and  Radford 
had  a  right  to  be  there ;  but  this  gentleman  was  not 
satisfied  with  restricting  them ;  he  claims  a  privilege 
which  he  denies  to  them.  He  comes  up  to  Radford,  and 
tauntingly  asks  him,  "  A'n't  you  tired  of  standing  guard, 
won't  you  have  a  chair  ?"  Now  this  is  frivolous,  but  it 
deserves  punishment.  But  it  is  said,  by  way  of  enfeebling 
the  evidence,  to  which  I  have  referred,  that  the  witnesses 
for  the  defence  are  all  journeymen  tailors  except  some 
three  or  four ;  and  these  we  are  told,  although  they  are 


110  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

not  journeymen  tailors,  are  master  tailors,  and  are  sup- 
ported by  journeymen  tailors  and  apprentices.  I  ask  you 
to  notice  the  shop  of  Messrs.  Robb  &  Winebrener — 
this  northern  hive — this  offidna  gentium — that  pours  forth 
this  host  of  witnesses.  If  you  take  the  testimony  of 
those  who  stand  in  close  relation  to  the  prosecutors,  out 
of  this  case,  it  has  not  a  foot  to  rest  on.  Mr  "Winebrener 
is  the  first — the  former  prosecutor  and  aggressor.  Mr. 
Chamberlain,  the  Messrs.  Robb — Charles,  Samuel  and 
William,  the  one  a  partner  and  the  other  his  brothers — 
O'Neil,  who  is  employed  and  gets  the  work  intended  for 
these  men — Ramsay  the  runner — and  he  follows  so  close 
after  his  master  that  he  brings  before  you,  as  Mr.  Wine- 
brener did,  a  memorandum  ;  and  asks  you  to  affix  your 
seal  to  his  Scroll  of  Fate.  There  you  have  the  most  im- 
portant witnesses  in  this  case,  every  one,  I  was  about  to 
say,  from  the  self  same  shop-board — nay,  every  witness, 
I  might  almost  say,  is  a  party  to  this  very  cause. 

For  all  the  purposes  of  testimony,  the  defendants  are 
dead  ;  their  lips  are  as  effectually  closed,  as  though  the 
ponderous  and  marble  jaws  of  the  tomb  had  devoured 
them ;  and  nothing  is  to  be  heard  but  Robb  and  Wine- 
brener— nothing  seen  but  that  bright  galaxy  in  which 
they,  the  primary  planets,  are  surrounded  by  a  host  of 
twinkling  satellites.  All  this  is  matter  of  consideration  ; 
the  inconsistencies  of  the  prosecution  are  to  be  more 
rigidly  scrutinized,  their  dispositions  more  closely  ex- 
amined, inasmuch  as  they  have  an  unlimited  power  of 
doing  wrong,  and  their  antagonists  are  debarred  of  all 
opportunity  of  counteracting  that  wrong.  But  the  prose- 
cutors have  not  only  sealed  our  lips,  but  they  at  the  same 
time  complain  of  our  want  of  witnesses.  They  say  we 
should  have  produced  Mr.  Alderman  Barker — for  what  ? 
To  establish  what  had  already  been  abundantly  confirmed 
by  at  least  three  or  four  witnesses.  Was  not  the  tran- 
script of  Mr.  Barker  offered  by  us  and  opposed  by  them  ? 
If  they  did  not  like  the  act,  it  is  not  probable  the  man 


JOURNEYMEN   TAILORS'   CASE.  Ill 

would  have  met  a  better  reception  ;  or  if  he  were  desira- 
ble, why  did  not  they  produce  him  ?  If  he  could  gainsay 
the  defendant's  proof,  they  had  but  to  step  across  the 
street,  requiring  no  seven  league  boots,  to  secure  his 
attendance.  But  while  upon  the  subject  of  evidence  omit- 
ted, allow  me  to  inquire  from  our  friend,  who  conducts 
this  charge — where  is  Mr.  Ross,  who  applied  to  the 
Messrs.  Watson  for  the  price  of  the  riding  habit  ?  Mr. 
Winebrener's  statement  unquestionably  required  his  sup- 
port ;  he  is  among  the  missing.  "Where  is  5lr.  Burden  ? 
a  gentleman  of  undoubted  character,  and  who  could  at 
once  have  placed  the  impress  of  unequivocal  truth  upon 
those  transactions,  in  regard  to^  which,  we  have  at  present 
nothing  but  the  scambling,  scattering,  and  unsure  obser- 
vance, of  the  redoubtable  naval  hero,  Mr.  Chamberlain. 
Mr.  Chamberlain !  whose  sight  is  so  jaundiced  either  by 
fear  or  favor,  that  the  most  common  and  familiar  courte- 
sies, are  subject  to  be  misunderstood  by  him.  Shaking 
hands,  itself,  with  him  is  a  badge  of  deliberate  treason ; 
there  is  not  a  smile  but  lurks  a  devil  in  it ;  and  in  short, 
all  the  charities,  and  sympathies,  and  civilities  of  life,  are 
dark  denotements  of  the  most  deadly  and  destructive 
hostility.  The  eloquent  counsel,  chiming  in  with  the 
witnesses,  solemnly  apostrophizes  a  pair  of  thread-bare 
"  breeches,"  in  the  course  of  his  interlocutory  appeal ; 
and  finally,  they  are  by  joint  effort  magnified  into 
something  but  little  short  of  a  nine  pounder  at  least, 
and  paraded  before  the  commonwealth  upon  this  occa- 
sion, with  all  the  pride,  pomp,  and  pageantry  of  a 
military  triumph.  *  Now,  though  some  men,  as  we  are 
told,  when  the  wind  is  north-northwest,  may  distinguish 
between  a  hawk  and  a  handsaw,  I  respectfully  submit 
to  you,  that  after  this,  Mr.  Chamberlain  is  not  entitled 
to  rank  of  that  number :  however  this  may  be,  permit 

*  This  refers  to  Mr.  Chamberlain  having  mistaken  a  pair  of  panta- 
loons, in  the  hands. of  one  of  the  defendants,  for  a  murderous  weapon. 
—ED. 


112  FORENSIC   SPEECHES   OP   DAVID   PAUL    BROAVN. 

me  nevertheless  solemnly  to  congratulate  the  hero  upon 
his  escape  from  all  those  toils  and  perils  past,  those  "  hair 
breadth  'scapes,  and  imminent  adventures."  Had  it  not 
been  for  the  timely,  critical  interposition  of  Mr.  Boner — 
one  of  these  nefarious  conspirators — had  it  not  been  for 
his  merciful,  all-imposing,  irresistible  injunction,  addressed 
to  Mr.  Parkinson,  in  the  mystic  and  magic  words  "  NOT 
YET" — the  wide  world  would  have  had  to  lament  the 
premature  de.ath  of  the  illustrious  Mr.  Chamberlain,  in  a 
manner  scarcely  less  deplorable  or  infamous  than  that  of 
suicide — A  tailor  killed  by  the  untimely  explosion  of— a  pair 
of  pantaloons  ! 

I  have  no  more  inclination,  though  much  more  cause 
to  assail. the  witnesses  in  this  case,  than  the  opposite 
counsel,  and  as  much  confidence  may  be  reposed  in  the 
candor  of  this  declaration,  as  in  his  ; — neither,  I  hope, 
having  any  view  to  ulterior  results.  But  allow  me  to  say, 
it  is  the  policy  of  the  commonwealth  to  abstain  from  con- 
sidering the  veracity  of  the  evidence,  and  particularly 
that  of  Chamberlain,  as  it  could  terminate  in  nothing  but 
discomfiture  and  disgrace.  "With  us,  however,  as  1  have 
said,  the  matter  stands  differently.  The  prosecuting  tes- 
timony I  will  show  you  is  assailable  wherever  it  is  tangi- 
ble, and  vulnerable  wherever  it  is  assailable.  And  we  are 
bound  to  say — at  the  same  time  that  no  man  should  be 
wantonly  attacked — that  that  delicacy  which  would  pro- 
tect a  witness  from  merited  odium,  in  a  cause  like  this, 
would  imply  an  abandonment  of  duty,  and  so  far  from 
being  a  virtue,  would  be  a  crime.  Let  us  then,  proceeding 
upon  this  principle,  approach  somewhat  nearer  to  the 
witnesses,  and  touching  them  with  the  celestial  spear 
of  Ithuriel,  deprive  them  of  their  masks  and  exhibit 
them  to  the  world  in  their  true  features.  First,  in  the 
first  rank,  comes  the  redoubtable  Mr.  Chamberlain,  to 
whom  I  have  already  generally  referred.  The  Hero 
comes!  after  having  sustained  a  friendly  blank  cartridge 
fire  from  the  gentlemen  engaged  for  the  prosecution,  for 


JOURNEYMEN    TAILORS'   CASE.  113 

about  an  hour,  with  most  undaunted  bravery  !  Did  you 
observe  the  moment  the  battery  of  the  defence  was 
brought  to  bear  upon  him,  how  utterly  the  scene  was 
changed?  Upon  being  cross-examined,  he  was  simply 
asked — Have  you  been  to  sea  ?  Do  you  remember  how 
at  once  he  floundered  and  fluttered  like  a  winged  wid- 
geon ;  first  declining,  and  afterwards  demanding  whether 
he  was  bound  to  answer  the  question  ?  In  this  dilemma 
his  confusion  is  increased  by  a  friendly  attempt  to 
diminish  it — Mr.  Wurts  tells  him  he  may  answer  it,  and 
"  say  also  whether  he  had  not  seen  Mr.  Reed  in  South 
America."  This  is  too  much,  and  everything  like  com- 
posure is  at  once  put  to  flight.  At  length,  however, 
mustering  up  his  scattered  spirits,  he,  after  a  prodigious 
effort,  succeeds  in  saying,  he  had  once  been  on  board  the 
United  States  ship  Macedonian.  The  question  related  to 
other  matter  than  that — but  explanation  on  our  part  was 
not  allowable,  and  upon  theirs  not  advisable.  But  was  it 
not  evident  to  you,  not  only  from  the  manner,  but  the 
answer,  that  there  was  more  in  his  recollection  than  either 
reached  the  eye,  or  ear  ?  Why,  sir,  are  you  ashamed  of 
your  naval  glory,  of  having  been  defending,  and  defended 
by,  the  wooden  walls  of  your  country — why,  above  all, 
would  you  disclaim  even  a  single  leaf  of  the  Macedonian's 
laurels — a  single  ray  of  that  lustre  which  she  reflects  upon 
the  nation?  Why!  there  was  not  a  splinter  in  the  ship, 
either  considered  in  connection  with  herself,  or  in  relation 
to  her  great  original,  that  might  not  have  lighted  up 
more  courage  in  your  heart,  than  even  all  your  imaginary 
exigencies  and  impediments  could  possibly  have  required! 
— Fear,  however,  is  always  the  spontaneous  offspring  of 
crime — "  suspicion  always  haunts  the  guilty  mind ;  the 
thief  doth  fear  each  bush  an  officer." 

"But  to  his  story — having  escaped  the  murderous  weapon 
of  Mr.  Parkinson,  he  takes  shelter  under  the  friendly  roof 
of  Mr.  Burden ;  while  here,  he  sees,  or  fancies  he  sees 
enemies  upon  all  sides ;  three  men  nearly  opposite  to  the 

8 


114  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

door — and  several  others  approaching — Falstaff' s  men  in 
Kendal  Green,  I  suspect — buckram  men,  certainly,  even 
according  to  his  own  statement.  To  relieve  him  from 
this  state  of  incalculable  peril,  the  magistrate  and  Mr. 
Milliman  who  had  been  sent  for,  at  length  arrive ;  and 
under  the  charge  of  the  latter  he  is  induced  to  resume  his 
way  home — and  what  is  remarkable,  none  of  these  be- 
leaguering enemies,  according  to  Mr.  Milliman,  molest, 
speak  to,  or  apparently  notice  them.  When  they  reach 
the  vicinity  of  South  street,  Mr.  "Winebrener  arrives  in 
breathless  anxiety — calls  to  the  constable,  and  then,  in- 
stead of  passing  on  to  the  residence  of  Mr.  Chamberlain, 
which  was  within  a  short  distance — wonderful  to  relate, 
and  the  more  remarkable,  as  it  is  entirely  forgotten  by 
the  hero  of  this  episode — at  the  instance  of  Mr  Winebre- 
ner, they  all  three  retrace  their  steps — encounter  Mr. 
Boner  and  Mr.  Donahue  in  their  return,  which  results  in 
the  unprovoked  assault  and  battery  upon  Mr.  Boner,  to 
which  I  have  already  adverted.  Mr.  Milliman,  a  per- 
fectly respectable,  as  well  as  disinterested  man  acquits 
the  individuals  accused  by  Mr.  Winebrener  and  Mr. 
Chamberlain,  of  everthing  like  impropriety  ;  and  conclu- 
sively shows  that  this  most  horrible  and  appalling  scene 
of  outrage,  and  probable  murder^  was  but  the  sheer  coin- 
age of  an  over-heated  brain. — In  short,  this  man  appears 
to  have  been  wrought  up,  by  some  internal  and  unac- 
countable agitation,  almost  to  a  pitch  of  madness — or  at 
least,  he  centres  in  his  make  such  strange  extremes,  as  to 
render  his  conduct  perfectly  inexplicable  upon  the  com- 
mon principles  of  human  action — he  first  flees  from  danger 
either  real  or  imaginary,  with  little  or  no  apparent  cause ; 
and  then,  with  no  more  cause,  he  voluntarily  confronts 
that  danger.  He  sees  a  man  at  eleven  o'clock  at  night 
moving  about  his  door,  and  is  terrified  at  the  treacherous 
designs  of  which  he  suspects  him  ;  and  yet  leaves  his 
house  for  the  purpose  of  pursuing  the  enemy  and  su^ject- 
ing  himself  to  the  very  crisis  that  he  dreaded. 


JOURNEYMEN   TAILORS'   CASE.  115 

This  shows  the  spirit  of  the  cause,  and  it  is  for  that 
purpose  mainly,  that  I  have  taken  the  liberty  of  occupy- 
ing your  attention  with  these  transactions.  And  is  it  at 
all  extraordinary  that  thus  situated,  the  opposite  counsel 
should  attempt  making  a  virtue  of  necessity,  by  profes- 
sing a  disinclination  to  comment  upon  the  character  of 
the  proof,  when  the  proof  which  they  have  exhibited,  for 
the  most  part  shrinks  from  the  test  of  comment. — Their 
profession  is  too  thin  a  veil  to  conceal  the  true  character 
of  their  liberality — it  resembles  the  kiss  of  Judas  the  be- 
trayer— the  compassion  of  the  crocodile,  who  mingles  his 
tears  with  the  life's  blood  of  his  expiring  victim. — If  men 
are  to  be  assailed,  let  it  be  done  openly,  with  full  oppor- 
tunity of  resistance.  Why  is  it,  notwithstanding  all  this 
mercy — this  theoretical  mercy — the  prosecution  is  still  so 
cruel,  even  to  some  of  their  own  witnesses — Saturn  like, 
devouring  their  own  offspring.  In  regard  to  O'Flaherty, 
who  was  called  by  them,  it  is  plainly  intimated,  without 
any  inducement  being  suggested,  that  he  is  perjured — nay, 
more — that  by  way  of  protecting  himself  in  that  perjury, 
he  had  torn  a  leaf  out  of  the  minute  book  of  the  society. 
Notwithstanding  the  witness — with  a  promptness  and 
frankness  that  did  him  honor — gave  for  explanation,  that 
this  book  had  originally  been  appropriated  to  other  pur- 
poses ;  and  that,  as  he  did  not  slumber  amidst  hoards  of 
gold,  and  had  no  money  to  lavish  upon  unnecessary  pur- 
chases, he  converted  the  book  to  the  uses  of  the  society  ; 
having  previously  torn  out  the  leaves  which  appertained 
to  other  matter.  From  the  severity,  with  which  Mr. 
O'Flaherty  has  been  treated,  we  may  easily  preceive  that, 
whether  friends  or  foes — if  the  individuals  who  have 
been  invoked  into  this  trial,  stand  in  the  way  of  Robb  & 
Wiuebrener — they  are  equally  liable  to  persecution. 

But  to  return  to  the  consideration  of  the  prosecuting 
testimony  ;  Mr.  O'Neil,  who  follows  upon  the  heel  of  Mr. 
Chamberlain,  and  who  was  encouraged  by  our  friends  on 
the  opposite  side,  in  rather  more  impertinence  than  be- 


116  FORENSIC    SPEECHES   OP   DAVID   PAUL   BROWN. 

came  the  solemnity  of  the  obligation  under  which  he 
appeared — Mr.  O'^eil,  I  say,  showed  his  disposition  to 
convince  you,  that,  as  the  other  was  not  a  prepared  wit- 
ness, he  at  least  was,  and  that  he  came  purposely  prepared 
to  answer  me — it  is  true  he  was  prepared  to  answer  me  ; 
but  he  was  not  prepared  to  answer  himself.  He  should 
have  come  prepared  to  swear  to  what  he  had  sworn  to 
before — to  swear  to  the  same  men,  and  to  vindicate  his 
statement  before  the  magistrate ;  while  he  should  have 
forgotten  his  studied  argument  for  Robb  &  Winebrener, 
of  left  that  with  the  other  unfinished  garment — at  home. 
He  tells  you  at  this  time  that  Mr.  Hough,  the  man  sworn 
to  before,  is  the  man  that  called  at  his  house  in  company 
with  Radford  ;  yet  at  the  magistrate's  office,  as  we  have 
shown  by  three  or  four  incontrovertible  witnesses,  he 
swore  positively  to  Eadford  and  to  Miller,  and  to  the  best 
of  his  belief  as  to  Scott.  What  then  is  the  argument  ? 
Without  at  all  designing  to  convict  Mr.  O'Neil  of  false- 
hood ;  if  at  different  times  he  swears  to  different  men, 
his  testimony  is  too  imperfect  and  unsatisfactory  to  fur- 
nish anything  like  a  basis  upon  which  we  may  safely  rely. 
If  Mr.  Radford  and  two  others,  being  participants  jointly, 
in  a  criminal  design — in  pursuance  of  that  design,  called 
at  the  house  of  the  witness,  we  are  entitled  to  know  who 
they  were ;  and  that  we  cannot  ascertain,  from  the  evi- 
dence of  any  man  who  swears  on  different  days  to  differ- 
ent persons.  To  entitle  testimony  to  our  reliance,  it 
should  exhibit  at  least  as  much  truth  as  zeal. 

If  you  cannot  rely  upon  Mr.  O'Neil  as  to  the  person, 
much  less  can  you  confide  in  his  remembrance  of  the  con- 
versation ;  but  even  if  you  could  accord  your  belief  fully 
to  both,  what  is  to  be  the  result  ? — What  was  the  offence? 
These  men  having  understood  that  Mr.  Winebrener,  Mr. 
Ramsey,  and  others,  had  related  their  stories  to  O'Neil, 
and  had  also  employed  him  ;  thought  proper  to  wait  upon 
him,  and  to  submit  an  account  of  their  grievances,  and 
concluded  by  asking  if  he  thought  it  right  to  join  in  a 


JOUKNEYMEN   TAILORS'   CASE.  117 

confederacy  with  Robb  &  Winebrener  to  do  the  work  of 
the  journeymen,  and  thereby  to  deprive  them  of  their^  . 
wages,  according  to  their  contract. 

Had  not  these  men  authority  to  remonstrate  against  an 
encroachment  upon  their  rights? — Or  is  that  encroach- 
ment to  be  justified,  and  the  remonstrance  itself  to  be  con- 
sidered culpable  ?  O'^Teil,  and  Robb  &  "Winebrener,  and 
Ramsay,  and  Chamberlain  were  all  conspirators — integral 
parts  in  the  great  scheme — to  reduce  journeymen  to  sub- 
mission or  starvation.  Yet  they  have  so  managed  their 
cards  as  to  shuffle  the  poor  and  unfortunate  to  the  top  of 
the  pack,  while  they  themselves  are  screened  from  obser- 
vation, and  protected  from  animadversion  by  the  very 
individuals  whom  they  have  abused.  I  put  it  to  you, 
without  the  fancy  of  the  advocate,  that  these  are  the 
plain,  unsophisticated  facts  of  the  case.  The  next  wit- 
ness is  Mr.  Ramsay,  the  compeer  of  Mr.  O'Neil.  What 
shall  be  done  with  these  men — though  they  are  in  gears 
together,  they  refuse  to  pull  together.  Mr.  Ramsay  even 
now  denies  that  Hough  was  one  of  the  companions  of 
Radford,  but  upon  the  contrary  still  adheres  to  Miller  and 
Scott.  Then  you  have  Ramsay  in  opposition  to  O'Neil. 
There  is,  in  short,  such  inconsistency  and  contrariety  in 
this  portion  of  the  testimony,  intrinsic  and  relative,  that 
it  is  almost  impossible  to  accord  your  confidence  to  either 
of  them.  If  there  were  any  explanations  that  could  as- 
sist -or  reconcile  these  statements,  it  was  in  the  power  of 
the  opposite  party  to  supply  them  by  the  evidence  of  the 
magistrate  ;  and  they  stand  confirmed  by  the  omission  on 
their  part  so  to  do.  But  there  are  still  greater  discrep- 
ancies. Winebrener,  O'Neil  and  Ramsay — with  the  benefit 
of  their  memoranda  to  boot — tell  you  that  there  was  never 
any  instruction  to  the  alderman  to  discontinue  the  prose- 
cution against  a  number  of  these  men ;  but  that  it  was 
determined  to  pursue  it,  Notwithstanding  which,  the  op- 
posite counsel  gave  you  to  understand  that  the  defendants 
were  merely  on  their  good  behavior,  and  to  be  discharged 


118  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

or  tossed  in  a  blanket,  as  the  whim,  will,  or  pleasure  of 
the  prosecution  might  suggest.  Four  witnesses  for  the 
defendants  state,  that  three  of  them  were  actually  dis- 
charged at  Mr.  "Winebrener's  own  request ;  and  we  have 
offered  the  records  and  the  returns  of  Mr.  Barker  for  the 
purpose  of  confirmation.  The  same  witnesses  swore  that 
a  commitment  had  been  prepared  for  Bates,  Skeegs,  and 
Scott ;  and  that  it  was  only  upon  their  counsel  declaring 
that  they  would  not  give  bail,  but  should  submit  to  im- 
prisonment, and  that  a  suit  should  subsequently  be  insti- 
tuted against  Eobb  &  Winebrener  for  a  malicious  prose- 
cution— that,  from  a  fear  of  punishment,  and  not  a  love 
of  justice,  the  case  against  these  gentlemen  was  dis- 
missed, on  simply  their  own  recognizance.  Notwith- 
standing this,'  they,  and  some  dozen  others,  for  the 
purpose  of  depriving  us  of  testimony,  and  transferring 
the  responsibility  of  this  prosecution  to  the  shoulders  of 
the  grand  jury,  are  subsequently  embraced  in  the  in- 
dictment. If  this  shows  nothing  else,  it  at  least  betrays 
a  conscious  fear  on  the  part  of  our  antagonist ;  and  dis- 
closes the  state  of  mind  by  which  they  have  been,  and 
still  continue  to  be  influenced  in  this  proceeding.  There 
has  also  been  the  most  unnatural  obliquity,  not  to  say 
perversion  of  intellect  and  vision,  that  ever  crept  into  a 
cause.  It  would  appear  as  if  every  one  of  these  gentle- 
men had,  like  Foy,  employed  a  telescope  ;  with  this  differ- 
ence, to  be  sure,  that  it  was  so  inverted  by  them,  that 
every  thing  appeared  erroneously,  and  the  world  was 
turned  topsy  turvy.  Mr.  Robb  tells  you— and  his  testi- 
mony and  deportment  are  entitled  to  much  greater  re- 
spect than  some  others — that  one  of  the  individuals  not 
now  upon  trial — taking  the  name  of  the  Deity  in  vain — 
swore  he  would  enter  into  the  shop  in  despite  of  Robb  ; 
whereas  the  very  individual  referred  to,  upon  his  exami- 
nation, says,  that  the  language  imputed  to  him  was  used 
only  by  Mr.  Robb,  who  .accompanied  his  profanity  by 
levelling  a  lapboard  at  the  head  of  the  witness,  and  pur- 


JOURNEYMEN  TAILORS'   CASE.  119 

suing  him  down  stairs  with  threats ;  although  he  had 
previously  offered  willingly  and  peaceably  to  leave  the 
premises.  This  man  has  no  interest  in  the  present  con- 
troversy, and  he  is  strengthened  by  being  opposed  only 
to  those  who  have. 

Last,  though  not  least,  comes  Mayhew.  How  does  he 
stand  ?  He  was  formerly  iu  the  employment  of  Robb  & 
Winebrener,  and  now  under  the  promise  of  future  em- 
ployment from  them.  Heaven  forbid — though  I  am  not 
in  the  habit  of  invoking  anything  sacred  in  a  cause  like 
this — I  say  Heaven  forbid,  that,  because  he  has  been  in 
their  employment,  he  should  be  thereby  biassed,  or 
swerved  from  the  truth.  While  we  condemn  the  sus- 
picions of  others,  let  us  not  fall  into  the  same  error ;  but 
will  you  turn  your  attention  to  him  arid  examine  his 
claims  to  belief.  He  is  one  of  those  who  suppose  that 
somebody  always  wants  to  buy  them ;  and  for  the  very 
reason  that  they  are  always  willing  to  be  bought.  He 
supposes  that  these  journeymen  wished  to  purchase  him, 
and  he  says  they  endeavored  to  dissuade  him  from  going 
to  Robb  &  Winebrener's.  Now  what  is  the  plain  testi- 
mony of  those  who  are  not  journeymen  tailors  ?  What 
say  they?  Why  that  they  endeavored  to  dissuade  this 
headstrong  young  man  from  getting  himself  into  diffi- 
culty, and  adding  the  twenty-sixth  man  to  this  con- 
spiracy ;  but  never  dissuaded  him  from  going  to  Robb  & 
Winebrener's.  But  what  is  very  strange  is,  that  he 
throws  up  his  work,  not  from  any  dissuasion  of  others, 
but  from  some  domestic  broil ;  and  still  it  is  imputed  to 
these  men. 

It  seems  there  was  some  unhappy  family  disturbance, 
and  that  disturbance  was  pursued  by  our  friend,  under 
the  hope  that  it  might  be  traced  to  the  defendants ;  but 
it  turned  out  to  be  purely  a  domestic  disturbance,  and 
was  subsequently  avoided  by  me,  as  indelicate  and  im- 
proper. He  states,  when  put  to  the  torture,  that  in  con- 
sequence of  this  difference,  he  turned  Pickering  from  his 


120  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

house.  Pickering  says  he  never  saw  him  there,  that  he 
never  was  in  his  house  but  once,  and  then  he  called  to 
mention  that  he  had  some  work  for  him.  He  mentioned 
it  to  his  wife,  Mayhew  not  being  at  home  ;  and  the  next 
day  the  man  came  down  to  the  shop.  Do  you  suppose, 
if  it  were  true,  that  he  expelled  him  as  he  has  said,  that 
he  would  come  down  to  Pickering's  shop  and  ask  his  ad- 
vice ?  Does  not  this  fact  show,  as  well  as  the  evidence 
of  Miller,  that  all  this  story  about  his  wife  and  Mr.  Pick- 
ering (which  nobody  can  understand),  was  merely  resorted 
to,  to  extricate  him  from  a  difficulty  which  he  could  not 
otherwise  escape  ;  and  that  it  had  as  little  foundation  as 
three-fourths  of  the  other  statements  from  the  same 
quarter.  Mr.  Mayhew  is  next  seen  at  Mr.  McGuire's, 
where  the  society  met.  Here  he  saw  some  of  the  defend- 
ants— converses  with  them — tells  them  he  is  willing  to 
be  idle  if  he  can  get  money  enough  to  support  him — never 
receives  any  money,  and  finally,  finding  no  other  bidders 
for  his  services  than  his  old  employers,  he  communicates 
all,  and  more  to  them ;  and  again  enlists  under  their  ban- 
ner. It  would  be  safer  to  rely  upon  the  fidelity  of  the 
winds  and  the  waves,  than  upon  testimony  so  loose  and 
unsatisfactory  as  this. 

As  to  the  charges,  or  rather  reasons,  why  these  men 
should  be  considered  conspirators. 

First,  because  they  belong  to  a  society  which  has 
adopted  illegal  laws.  It  is  not  so  charged  in  the  indict- 
ment— that  is  my  answer.  All  the  time  that  is  employed 
in  discussing  the  affairs  of  this  society  amounts  to  noth- 
ing. You  discuss  the  laws  of  the  society  as  if  the  society 
had  been  indicted ;  and,  as  if  the  crime  consisted  in  con- 
federating and  forming  these  laws.  But  that  is  not 
charged.  It  is  attempting  to  argue  that  there  was  a  con- 
spiracy, which  can  amount  to  nothing  unless  embraced 
in  the  indictment.  For  you  can  no  more  punish  a  crime 
without  an  indictment,  than  you  can  punish  upon  an  in- 
dictment without  a  crime.  But  allow  me  to  rescue  the 


JOURNEYMEN   TAILORS'   CASE.  121 

society — though  I  have  no  interest  therein  but  that  which 
every  man  should  have — from  unmerited  reproach. 

We  are  told  by  the  gentleman  on  the  opposite  side,  in 
relation  to  the  book  of  this  society,  that  he  did  not  take 
it  home,  because  he  supposed  that  he  should  be  suspected 
of  taking  out  the  leaves.  He  might  have  taken  it  home, 
I  assure  him,  without  any  such  suspicion — nay,  we  should 
have  rejoiced  in  it ;  for  had  he  known  more  of  its  prin- 
ciples, he  would  have  condemned  them  less. 

If,  may  it  please  your  honors,  this  society  had  been 
indicted,  the  cause  could  not  have  been  sustained :  un- 
doubtedly, then,  the  society  not  having  been  indicted, 
the  cause  cannot  be  sustained :  at  least,  so  far  as  relates 
to  the  proof  bearing  upon  the  society  alone.  There  is 
not  an  illegal  principle  in  the  whole  book.  The  first, 
however,  adverted  to,  and  that  which  gives  a  more  dread- 
ful note  of  treason  than  the  rest,  is  an  enactment,  that 
any  individual  who  shall  move  to  convert  this  society 
into  a  beneficial  society,  shall  be  fined  for  the  first  oftence, 
and  expelled  for  the  second.  I  have  not  much  knowledge 
of  this  subject,  but  I  presume  that  most  of  you  have  be- 
longed to  societies  of  a  similar  kind.  And  every  man 
knows  perfectly  well,  that  this  portentous  and  ominous 
rule  amounts  to  nothing — nothing  at  least  in  support  of 
the  gentleman's  apprehension.  Now  what  is  the  evident 
object  in  this  ?  Here  are  men  who  have  associated 
together  for  the  protection  of  their  rights:  and  ever 
since  the  allegory  of  the  bundle  of  sticks,  it  has  almost 
been  reduced  to  a  proverb,  that  the  wheat  should  com- 
bine for  protection  against  the  storm.  They  have  done 
it,  and  they  are  bound  together  by  a  silver  cord  ;  securing 
the  object  for  which  they  have  united.  Now  that  pro- 
vision is  to  prevent  lawless  individuals  from  coming  into 
the  society  in  large  numbers,  and  turning  the  public  cof- 
fers to  their  own  benefit ;  in  contravention  of  the  design 
which  forms  the  basis  of  the  institution. 

Have  you  not  been  told  that  it  is  a  beneficial  society ; 


122  FORENSIC    SPEECHES    OF    DAVID   PAUL   BROWN. 

that  they  bury  their  own  dead ;  that  they  pay  the  expen- 
ses of  the  funeral :  and  are  not  those  benefits  lasting 
which  survive  the  grave?  Nay,  is  not  one  of  the  charges, 
that  it  is  a  beneficial  society,  virtually  ?  I  trust  the  gen- 
tleman will  excuse  me  for  saying,  that  he  has  been  blow- 
ing hot  and  cold  with  the  same  breath  ;  first,  it  is  a 
beneficial  society,  and  therefore  to  be  repudiated ;  and  the 
next  instant  to  be  condemned  because  it  is  not  a  bene- 
ficial society.  How  shall  we  steer  to  catch  a  favorable 
breeze  ?  How  shall  we  at  the  same  time  shun  Sylla  and 
Charybdis  ?  Let  him  take  it  as  if  it  were  not  a  bene- 
ficial society,  armed  with  lawful  objects ;  but  if  it  be  a 
beneficial  society,  let  it  never  be  said,  that  the  benevo- 
lence or  beneficence  of  its  character  should  take  from 
its  legality.  But  we  are  next  exultingly  turned  to  the 
14th  article,  as  the  respectable  counsel  supposes  it  means 
mischief;  but  neither  he  nor  any  one  can  tell  how.  At 
the  time  when  journeymen  are  standing  out  for  their 
rights,  against  the  oppression  of  overweening  masters, 
or  opposing  despotism  and  force — if  any  man  desert  his 
brother — if  he  desert  him  in  a  struggle  like  this,  he  is  a 
coward,  and  a  traitor,  and  he  deserves  no  better  name. 
The  law  says  that  men  shall  stand  out  for  their  rights — 
and  it  is  only  when  they  stand  out  for  their  rights  against 
the  encroachment  of  others,  that  they  are  vindicated  or 
sustained ;  and  I  arn  willing  to  read  the  article  to  you  a 
hundred  times  if  you  please,  as  the  best  encomium  that 
can  be  pronounced  upon  a  body  of  men  so  grossly  abused — 
so  miserably  misunderstood. 

"  Article  14.  Any  man  going  to  work  at  the  time  of  a 
turn  out,  and  at  a  time  when  young  men  are  standing 
out  for  their  rights  in  this  city,  or  any  of  the  principal 
towns  in  the  United  States,  if  it  shall  come  to  the  knowl- 
edge of  this  society,  the  parties  so  offending  shall  pay  a 
fine  of  five  dollars;  and  after  paying  the  same,  if  any 
member  shall  upbraid  him  with  his  former  conduct,  he 
shall  pay  the  sum  of  one  dollar." 


JOURNEYMEN   TAILORS'   CASE.  123 

Observe  the  justice  of  the  law — Solon  himself  could  not 
have  framed  a  wiser  law.  And  after  paying  the  money,  if 
any  man  should  upbraid  him,  that  man  should  pay  a  fine  of 
one  dollar.  You  have  erred  and  returned  again,  like  the 
prodigal  to  your  duty— you  have  erred,  and  we,  who  are 
all  liable  to  err,  forgive  you ;  "to  err  is  human,  to  forgive 
divine." 

But  nothing  being  found  in  the  book,  the  gentleman 
resorts  to  his  fancy,  to  an  imagination  of  what  might  be ; 
and  you  are  to  convict  upon  a  prospective  or  possible 
evil.  Although  it  is  not  contained  in  the  book,  yet  how 
do  we  know,  that  they  have  not  made  provision  for  it  by 
a  shop  rule?  We  offered  to  tell  them  what  were  the 
shop  rules ;  but  having  shut  their  eyes  to  the  light,  they 
should  not  now  complain  of  darkness.  We  have  offered 
to  show  them  that  it  was  not  a  shop  rule — they  refused  ; 
and  we  are  bound  to  believe  the  truth  of  the  case  is 
against  the  surmise.  You  have  heard  many  instances 
where  journeymen — individuals,  not  members  of  the  so- 
ciety— have  not  been  disturbed  ;  and  you.  have  had  no  in- 
stance in  which  they  have.  There  may,  it  is  true,  be  the 
"  pitcher  law,"  governing  their  little  convivialities  ;  but 
they  do  not  drink  treason  on  the  admission  of  every  new 
member ;  and  they  are  not  to  be  convicted  on  mere  hints 
and  innuendoes — we  ask  for  stubborn  and  unequivocal 
facts.  I  say  the  witnesses,  or  some  of  them,  have 
clearly  established  that  there  was  no  illegal  confed- 
eracy at  all.  But  what  is  the  answer  again  ?  We  answer, 
you  have  not  charged  us  with  the  "  pitcher  law."  We 
have  spoken  to  that  law,  not  that  from  any  interpretation 
we  can  be  affected  by  it,  but  to  show  that  we  ask  no 
quarters  ;  but  are  ever  ready  to  encounter  the  alleged 
charges,  whether  suggested  by  the  record  or  imagination. 
We  come  prepared  to  meet  you,  armed  against  the  offences 
of  which  y ou  have  accused  us ;  but  we  do  not  refuse  to 
meet  anything  and  everything — although  it  is  illegal  and 
.unjust  to  expect  it.  So  much  then  for  the  society — we 


124  FORENSIC   SPEECHES    OF. DAVID   PAUL   BROWN. 

will  now  throw  out  of  the  question  that  which  does  not 
belong  to  it ;  and  for  which  our  opponents  must  be  our 
apology  if  it  has  constituted  the  burthen  of  our  song. 

What,  then,  is  the  first  charge  in  the  indictment,  and 
the  facts  relating  to  that  charge  ?  "We  will  endeavor  not 
again  to  refer  to  that  which  is  not  essential  in  this  case  ; 
although  it  was  necessary  that  this  should  be  remarked 
upon,  lest  the  jury  should  suppose  the  subject  unanswer- 
able because  unanswered.  I  only  ask  you  to  exercise  your 
own  reason,  and  I  will  be  perfectly  content  to  leave  the 
cause  to  its  unbiassed  results.  But  do  not  understand 
that  in  being  somewhat  unwilling  to  extend  your  time 
and  protract  this  case ;  it  is  with  any  other  disposition 
than  to  abridge  your  labors,  that  I  have  omitted  to  an- 
swer some  of  these  arguments ,  but  rather  impute  it  to  its 
true  source — a  proper  regard  to  you,  and  a  perfect  convic- 
tion that  they  are  answerable,  in  your  own  unassisted 
minds. 

What,  then,  are  the  first  four  charges?  They  are 
charges  of  conspiracy  on  the  part  of  these  men,  to  do  an 
unlawful  act,  or  to  do  a  lawful  act  by  unlawful  means  ;  and 
I  care  not  which.  The  act  alleged  to  be  in  contemplation 
by  the  conspirators,  was  the  increase  of  their  wages  be- 
yond the  usual  price  of  wages ;  and  not  accepting  the 
usual  price  of  wages  which  Robb  &  Winebrener,  and 
others,  had  been  accustomed  to  pay.  These  are  the  first 
four  charges.  I  allege  that  the  prosecution  cannot  suc- 
ceed on  the  establishment  of  a  doubtful  case — they  can- 
not succeed  by  rendering  it  diflicult  to  decide  whether 
the  defendants  did  in  fact  exact  more  wages,  or  whether 
Robb  &  Winebrener  offered  less.  They  must  show 
clearly — the  burthen  of  proof  being  with  them — that  we 
demanded  more  than  the  usual  wages.  It  is  not  incum- 
bent on  us  to  show  that  they  wished  to  pay  less  ;  but  we 
intend  to  show  that  these  men  are  the  sufferers,  though 
not  the  complainants.  Instead  of  their  demanding  more 


JOURNEYMEN   TAILORS'  CASE.  125 

wages,  Mr.  Winebrener  himself  introduced  the  attempt  to 
reduce  the  wages  below  their  proper  legitimate  level — 
(turns  to  bill). 

Is  this  your  bill,  Mr.  Winebrener?  Yes.  Is  this  your 
bill,  Mr.  Robb?  Yes.  Is  this  your  bill,  Mr.  Watson? 
Yes.  Well,  is  it  the  bill  by  which  you  work,  or  by 
which  journeymen  work  for  you — and  does  it  govern  the 
prices  in  this  respect  ?  It  does.  This  being  the  bill,  and 
placed  in  Mr.  Wiuebrener's  book,  and  displayed  publicly 
in  the  shop  of  the  journeymen — now  how  did  it  become 
the  bill  ?  By  express  contract  and  agreement  between 
the  parties.  And,  strange  as  it  may  seem,  this  is  an  in- 
dictment of  men  for  endeavoring  to  keep  their  contract. 
You  may  have  been  led  away  and  bewildered  by  the 
learned  counsel ;  and  they  may  hope  to  succeed  by  the  mys- 
tery in  which  the  subject  is  involved :  but  stripped  of  all 
its  borrowed  plumage,  it  is  an  indictment  against  twenty- 
five  men  for  wishing  to  keep  their  contract  against — I 
do  not  know  how  many — desiring  to  break  it.  This 
being  the  bill,  we  have  nearly  arrived  at  the  conclusion 
of  our  labors,  and  allow  me  to  congratulate  you  upon  the 
subject.  What  was  the  work  done?  It  was  a  pongee 
riding  dress,  requiring  five  or  six  men  to  complete  it,  as 
it  was  wanted  almost  immediately,  and  to  be  finished  in 
a  particular  way.  Well,  what  were  the  appendages,  and 
what  were  the  extras  ?  In  the  first  place,  it  was  a  dress 
with  hussar  skirts — in  the  second  place,  it  was  stuffed  in 
the  breast — it  had  wadding  in  the  heads  of  the  sleeves, 
and  vents  at  the  wrists.  It  had  hussar  skirts  rantered  at 
the  body — flies  at  the  breast :  and  all  this,  in  conformity 
with  the  bill,  is  charged  seven  dollars.  It  is  said  that 
there  were  no  extras,  but  every  man  examined  has  proved 
that  there  were  extras  ;  thus  making  the  prosecution  the 
worse,  by  giving  them  a  bad  habit  in  story  telling,  as  well 
as  in  other  matters  of  their  vocation.  I  put  it  to  the 
jury,  and  ask  if  they  know  any  exception,  besides  that 


126  FORENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

of  Mr.  "Winebrener.  The  other  witnesses  all  stated  that 
there  were  extras.  But  the  gentlemen  seem  to  have 
abandoned  the  extras,  while  relying  on  the  difference  in 
price.  With  the  extras  the  job  amounted  to  seven  dol- 
lars six  and  a  quarter  cents,  and  what  did  the  journey- 
men demand?  Did  they  demand  eight  dollars,  or  ten 
dollars  ?  No  such  thing ;  though  they  might  have  de- 
manded something  above  the  usual  price,  they  demanded 
exactly  seven  dollars.  And  what  did  the  masters  offer 
to  pay  ? — One  dollar  less  than  the  regular  price.  They 
insist  on  departing  from  the  regular  and  usual  price, 
and  turn  round  and  indict  these  men  because  they  are 
not  willing  to  submit  to  the  imposition.  Corrupt  motives 
are  not  to  be  causelessly  assigned  ;  the  defendants  are 
supposed  to  act  purely,  particularly  as  there  is  sufficient 
reason  here  to  induce  us  to  believe  they  were  right.  The 
price  is  authorized  by  the  bill.  "Were  there  any  distinc- 
tion designed,  it  is  not  introduced  ;  and  when  it  is  not  in- 
troduced, you  are  to  take  analogy  for  the  guide.  They 
might  as  well  say  their  making  a  blue  cloth  habit  should 
be  but  six  dollars,  because  there  is  a  difference  in  colors. 
The  question  is  whether  the  work  was  done,  and  in- 
tended to  be  paid  for.  Thin  coats,  coatees,  and  jackets 
are  distinguished  in  price  from  thick  ones,  because  there 
are  more  seams  in  the  one  than  the  other ;  because 
there  is  a  difference  in  the  seams,  and  no  wadding,  as 
the  object  of  the  dress  is  to  prevent  being  overheated. 
The  wadding  is  excluded,  and  they  are  made  in  the  most 
simple  and  airy  style.  What  is  the  analogy?  It  is 
"  marked  "  in  one  case ;  and  in  the  other  the  absence  of 
the  mark  shows  that  no  distinction  is  to  be  made. 

Now,  in  the  first  instance,  how  is  it  with  a  pongee 
habit  ?  is  it  as  with  a  thin  coat  ?  Not  at  all.  There  is  in 
the  first  place  a  very  evident  distinction.  But  I  mean  in 
point  of  fact,  not  in  principle — the  one  is  intended  for  a 
lady,  and  the  other  for  a  gentleman.  But  that  is  not 


JOURNEYMEN   TAILORS'   CASE.  127 

very  important.  In  the  next  place,  it  is  made  of  stuff 
half  a  yard  wide,  and  contains  more  seams— the  one  hav- 
ing five,  the  other  two  or  three ;  but  it  is  not  necessary 
for  me  to  go  into  an  actual  calculation,  for  when  I  tell 
you  all,  I  can  say  no  more  than  the  witnesses  have  ex- 
pressly sworn  to. 

The  man  who  has  been  stigmatized  with  being  a 
gardener  and  sexton — (I  am  wrong)  a  "  clerk "  of  St. 
Stephen's — I  beg  pardon,  your  honors,  not  being  so  well 
versed  in  church  history  as  the  opposite  counsel ; — The 
clerk  (it  shall  be)  of  St.  Stephen's  would  rather  make  two 
cloth  habits  than  one  pongee — independently  of  the  price  or 
profit — he  would  rather  make  two  cloth  than  one  pongee. 
And  did  they  not  all  say  that  it  was  as  much  or  more 

•/  •/ 

work  ?  But  it  is  said,  perhaps  from  the  charge  in  the 
book  of  Mr.  "Watson — a  most  respectable  gentleman, 
whom  no  man  will  disparage  or  accuse  of  improper  par- 
ticipation in  this  matter — that  on  one  occasion  Mr.  AVat- 
son  had  paid  but  six  dollars. 

[The  court  adjourned  till  half  past  three  o'clock.] 

Upon  the  reassembling  of  the  court,  Mr.  Brown  re- 
sumed as  follows : 

WITH  DEFERENCE  TO  YOUR  HONORS: 

At  the  time  of  the  adjournment  I  was  about  closing 
my  remarks,  and  of  course  I  have  but  a  moment  to  claim 
an  extension  of  your  indulgence. 

The  subject  under  discussion  at  that  time  was  the  price 
charged  by  these  journeymen  for  their  work.  And  we 
contended,  and  I  hope  satisfactorily,  that  this  was  the 
only  matter  embraced  in  the  first  four  counts  of  the  in- 
dictment. The  unlawful  act  with  which  these  men  are 
charged  is  their  having  combined  to  enforce  the  payment 
of  prices  beyond  the  usual  and  established  wages.  I  had 
proceeded  so  far  as  to  invite  the  attention  of  the  jury  to 


128  FORENSIC   SPEECHES   OF    DAVID    PAUL   BROWN. 

the  testimony  introduced  on  the  part  of  the  defendants, 
and  that  part  of  Mr.  Watson's  testimony,  said  to  be  sus- 
tained by  the  book  of  original  entries ;  whereby  it  appears 
according  to  his  own  declaration,  standing  aloof  as  he 
does  from  this  case — and  if  possessed  of  anything  like 
sympathy,  certainly  that  sympathy  is  naturally  with  the 
prosecution — that  the  amount  paid  by  him  for  a  bomba- 
zett  riding  dress  for  a  lady,  was  six  dollars,  which  is  the 
precise  sum  charged  by  the  defendants,  independently  of 
the  extras.  The  difference  between  four  dollars  and  fifty 
cents,  and  six  dollars — one  third — would  scarcely  have  been 
paid  by  Messrs.  Watson,  liberal  as  they  are,  if  not  sanc- 
tioned by  the  bill.  We  are  told,  however,  there  should 
be  a  difference — they  supposed  there  should,  as  between 
summer  and  winter  clothing !  But  I  say  there  should  not, 
because  the  bill  precludes  the  idea — the  bill  makes  a  dis- 
tinction expressly,  in  cases  of  men's  attire;  and  not  do- 
ing so  in  relation  to  women's  attire,  shows  that  such  a 
distinction  never  was  intended.  Six  dollars,  Mr.  Watson 
has  told  you,  was  paid  by  him  for  making  a  riding  habit 
which  had  flies  in  the  breast — here,  say  the  gentlemen,  is 
an  extra  not  charged.  Grant  your  attention  to  one  small 
circumstance — I  desire  you  to  bear  in  mind,  that  one  of 
Mr.  Watson's  journeymen  was  examined  but  a  moment 
before  he  (Mr.  W.)  was  calledt  This  journeyman  states 
that  the  habit  referred  to,  was  made  in  his  shop;  and  the 
only  reason — there  being  flies  in  the  breast — that  they 
were  not  charged  was,  that  not  being  very  conversant  with 
his  rights,  he  -omitted  to  charge  the  twenty-five  cents. 
Here  is  a  thin  habit  then  for  which  was  paid  six  dollars ; 
and  the  only  reason  that  the  journeyman  did  not  receive 
six  dollars  and  twenty-five  cents,  was,  that  he  did  not 
charge  it ;  and  still  he  received  the  price  for  making  a  thin 
habit,  the  same  as  if  it  had  been  a  cassimere  or  broad- 
cloth, without  the  extra,  which  he  only  failed  to  receive, 
from  omitting  to  mention  it.  But  it  appears  on  the  book 


JOURNEYMEN   TAILORS*   CASE.  129 

according  to  the  testimony  of  the  gentleman,  speaking  of 
a  remote  period  of  time,  that  there  is  a  charge  also  of  six 
dollars  and  seventy-five  cents,  for  a  thick  riding  dress  :  but 
he  at  the  same  time  tells  you,  that  since  this  bill  became 
the  law  governing  this  establishment,  he  has  no  recollec- 
tion of  any  other ;  and  he  does  not  recollect  whether  that 
contained  extras  or  not.  It  is  pretty  clear  that  it  did  con- 
tain extras,  or  otherwise  six  dollars  and  seventy-five  cents 
could  not  have  been  made  out.  There  must  have  been 
vents  «in  the  sleeves,  and  hussar  skirts,  which  were 
charged,  and  which  were  paid  for.  I  claim  no  credit  for 
this,  it  is  perfectly  evident  from  the  bill  itself,  as  com- 
pared with  the  book  exhibited.  He  who  runs  may  read. 
Then  here  we  have  all  that  we  contend  for,  ratified  by 
practice.  For  if  the  prices  of  summer  clothing  generally 
were  to  govern  in  ladies'  habits,  Mr.  Watson  would  have 
offered  some  four  or  five  dollars  for  that  for  which  he  paid 
six,  and  for  which  he  might  have  paid  six  and  a  quarter,  if 
there  had  been  any  attempt  to  claim  it ;  but  he  paid  what 
was  on  the  face  of  the  bill,  without  adverting  to  the  ex- 
tra. I  apprehend  the  matter  is  perfectly  clear.  Nay, 
Messrs.  Robb  &  Winebrener  themselves  finally  paid  the 
price  as  it  was  demanded ;  and  here  is  another  confirma- 
tion of  the  propriety  of  the  charge.  If  they  had  thought  it 
really  an  extortion,  would  they  have  paid  it?  They  al- 
lowed their  minds  to  cool,  and  paid  the  bill ;  but  yet 
their  malevolence  remained  unimpaired.  This  attempt 
was  an  indirect  mode  of  saying,  reduce  your  prices — we 
have  offered  you  six  instead,  of  seven  dollars,  and  we  will, 
by  and  by,  offer  you  five  instead  of  six.  And  still  they 
turn  about  in  the  face  of  all  these  facts,  and  tell  you 
that  the  conspiracy  was  on  the  part  of  these  men,  and  rely 
upon  the  master  tailors  to  bolster  them  up.  They  invoke 
their  interposition — they  confederate  actually,  as  well  as 
constructively,  to  bring  these  men  into  subjection  to  their 
will,  and  for  what  ?  For  the  purpose  of  violating  an  ex- 

9 


130  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

press  contract  with  these  men,  to  which  they  were  mutu- 
ally bound  to  adhere ;  and  for  departing  from  which  the 
law  would  have  punished  them.  I  say  that  Robb  and 
Winebrener  are  the  men  contemplated  in  the  indictment 
to  which  the  counsel  have  alluded — that  they  are  the 
conspirators — and  that  they  are  not  alone  in  the  confed- 
eracy. The  legal  offence — the  moral  offence,  if  there  be 
any,  as  suggested,  is  in  the  defendants  raising  their  wages, 
and  that  not  being  well  founded  in  fact,  they  cannot  be 
convicted,  for  the  facts  do  not  sustain  the  indictment.  It 
may  appear  monstrous  on  paper  and  nothing  on  proof. 
And  I  shall  insist  on  that  with  which  I  first  set  out, 
namely,  that  the  indictment  without  facts ;  or  facts  with- 
out an  indictment,  can  claim  nothing  at  your  hands,  but 
to  be  considered,  as  specious,  legal  amusements  and  toys — 
"  mere  sound  and  fury,  signifying  nothing." 

What  then  remains,  but  a  single  charge,  which  has 
been  exhibited  in  various  ways,  but  the  design,  as  alleged, 
is  still  the  same — to  injure  Robb  &  Winebrener,  and  their 
thrice  valiant  champion — the  peerless  knight  of  the  pan- 
taloons— who  mistook  a  pair  of  simple  "  galligaskins  "  for 
a  pair  of  pistols— just  twelve  inches  long — duelling  size — 
hair  triggers,  doubtless — percussion  locks,  and  loaded  to 
the  muzzle.  0  horribile  dictu — 0  miserabile  visu! 

But  we  design  to  embarrass  and  impoverish  Robb  & 
Winebrener,  Chamberlain,  O'Neil  and  a  number  of  oth- 
ers 1 1 — have  they  shown  the  design  ?  for  that  is  the  gist  of 
the  charge.  The  defendants  did  assemble,  it  is  true,  at 
the  corner  of  Third  street.  This  is  offensive  to  the  pros- 
ecutors, but  not  to  the  laws  of  the  land.  Messrs.  Robb  & 
Winebrener  dwell  at  such  an  immeasurable  distance  above 
them  in  point  of  character,  that  they  are  not  allowed  to 
look  at  them — even  with  a  telescope.  But  notwithstanding 
this  prohibition,  we  are  told  that  some  of  them  did  under- 
take to  look  through  Girard's  bank  with  a  telescope,  into 
the  back  window  of  Robb  &  Winebrener's  shop.  But 


JOURNEYMEN   TAILORS'  CASE.  131 

from  their  location,  I  should  have  supposed,  that  they 
would  require  a  telescope  that  would  enable  them  to 
look,  not  only  through  the  marble  walls,  but  through 
all  the  loaded  coffers  of  Mr.  Girard : — a  fine  prospect 
truly — and  you  are  asked  to  enjoy  it  in  fancy — believe 
it  you  cannot.  But  why  was  that  an  offence?  Did 
they  halloo  ?  Yes. — They  hallooed  to  Winebrener,  and 
"Winebrener  hallooed  to  them.  Is  it  the  play  of  chil- 
dren that  is  seriously  employing  intelligent  men,  in- 
voking the  interposition  of  the  law,  and  sacrificing  the 
time  of  hundreds  ? — We  are  again  told  that  they  made 
noises  that  are  not  to  be  described  ;  wonderful !  but  it  is 
not  for  what  cannot  be  described,  but  what  is  described, 
that  they  are  to  answer.  Did  you  hear  them  make  a 
noise  ?  Yes,  they  hallooed  through  the  windows,  and 
looked  in  with  a  spy  glass.  Well,  is  looking  through  a 
spy  glass,  and  hallooing  in  a  manner  that  can't  be  de- 
scribed, a  conspiracy  ?  Again — they  stood  at  the  cor- 
ners : — they  had  a  right  to  do  so.  It  is  said  they  inter- 
cepted the  men,  and  told  them  that  if  they  did  not  con- 
tinue in  the  service  of  Robb  &  Winebrener,  the  society 
would  support  them.  If  they  had  a  right  to  enact  such 
laws  they  had  a  right  to  promulgate  them ;  that  they  had 
such  a  right,  I  trust  we  have  shown. 

It  does  not  appear  that  one-half  of  the  defendants  were 
connected  with  the  matter  at  all,  by  the  proof ;  or  connec- 
ted with  each  other.  They  were  shown  to  be  members  of 
the  society,  it  is  true ;  but  not  even  shown  to  have  been 
on  the  pavement — it  is  necessary  that  they  should  be  iden- 
tified in  this  transaction.  I  protest  against  doing  justice 
by  wholesale  ;  when  the  facts  on  which  it  must  rest  have 
been  so  miserably  retailed  from  the  beginning  to  the  end. 
Well,  but  Mr.  Radford  is  certainly  to  blame !  This  goes 
to  all  the  counts,  and  with  this  I  conclude.  He  ventured 
to  pursue  Mr.  Ramsay  or  Mr.  Chamberlain — I  don't 
speak  certainly  (the  argument  is  the  same).  Mr.  Wine- 


132  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

brener  followed  along  Third  street,  down  Fourth  street, 
and  then  turned  up,  and  then  down ;  thus  having  a  real 
wild  goose  chase  in  pursuit  of  Mr.  Radford,  while  Rad- 
ford  was  in  pursuit  of  Chamberlain.  But  what  is  the 
amount  of  this  ?  They  thus  pass  up  one  street  and  down 
another;  and  give  their  courses  and  distances,  going  and 
returning:  all  of  which  serves  only  to  remind  one  of 
Goldsmith's  compliment  to  that  honor  and  glory  of  her 
sex,  Madam  Blaze. 

"Her  love  was  sought,  I  do  aver, 

By  twenty  beaux  or  more  ; 
The  king  himself  has  followed  her, — 
i       When  she  has  walk'd  before." 

"Winebrener  walked  after  Radford,  and  Radford  after 
Ramsay — but  he  stopped  at  a  watch  box,  or  lamp,  and 
that  too  is  become  a  matter  of  conspiracy — if  so,  it 
must  have  shed  more  light  than  we  have  yet  seen. 

Mr.  Ramsay  next  encountered  some  half  dozen  oppo- 
site the  post  office,  and  was  asked  where  he  had  been — 
he  said  in  answer,  what  was  not  true — I  hope  it  was  the 
first  time — I  am  sure  it  was  not  the  last. 

Here  were  Messrs.  Robb  &  Winebrener  sending  clothes 
all  over  the  city ;  and  if  Radford  did  follow,  Winebrener 
followed  also.  He  must  not  impute  the  consequences  to 
us  when  he  is  the  cause.  I  don't  pretend  that  one  con- 
spiracy justifies  another  ;  but  what  I  say  is,  that  there  is 
no  conspiracy  but  in  the  prosecution  itself,  and  that  the 
means  of  resistance  adopted  were  necessary  ;  and  are  sanc- 
tioned by  the  opinion  of  the  judge  referred  to  by  the 
opposite  counsel,  upon  the  principle  of  self-protection. 

Gentlemen  of  the  jury,  you  have  now  the  whole  case 
submitted  to  you :  my  duty  is  discharged,  so  far  as  my 
ability,  humble  as  it  is,  will  allow.  A  still  more  import- 
ant and  responsible  duty  remains  to  you ;  it  is  for  you  to 
determine  that,  which  it  devolved  upon  me  merely  to 


JOURNEYMEN   TAILORS'  CASE.  13.3 

discuss ;  to  determine  it,  even  under  all  the  influence  of 
that  eloquence  which  you  have  already  heard,  and  which 
you  will  again  hear  from  our  opponents.  You  have  been 
told,  among  other  appeals  to  your  feelings,  that  you  can- 
not sleep  soundly  or  safely  upon  your  pillows,  unless  you 
convict  these  men — nay  further,  that  it  is  necessary  to 
the  happiness  and  welfare  of  the  community.  If  this  be 
so,  you  are  virtually  parties  to  this  proceeding ;  and  while 
the  prosecutors  are  to  be  allowed  as  "large  a  charter  as 
the  wind,"  the  unfortunate  defendants  are  to  be  bound 
hand  and  foot,  and  offered  up  as  an  atoning  sacrifice, 
upon  the  altar  of  the  violated  laws.  Well,  if  you  cannot 
sleep  soundly,  and  acquit  these  men  ;  and  you  dare  not 
encounter,  for  the  preservation  of  your  consciences,  these 
phantoms  of  the  gentleman's  imagination  ;  why,  I  suppose 
you  must  sleep  soundly,  and  the  defendants  must  be  con- 
victed. Their  conviction  shall  not  disturb  your  slum- 
bers ;  the  groans  of  these  men,  and  of  all  those  who 
depend  upon  them,  shall  be  uttered,  but  you  shall  not 
hear  them ;  their  tears  shall  flow,  but  you  shall  not  see 
them ;  their  children  shall  be  reduced  to  beggary,  and 
worse  than  beggary,  they  shall  be  blurred  and  blotted 
with  inherited  crime ;  but  still  the  peace  and  tranquillity 
of  your  domestic  retirement  and  repose  shall  not  be  dis- 
turbed :  you  shall  sleep  soundly,  and  the  gentleman  shall 
have  his  way ! — Time  shall  roll  on,  until  in  the  grave, 
the  last  pillow  of  repose  for  the  oppressed  and  the 
wretched,  the  poor  man  at  least  rests  from  his  labors, 
and  throws  off"  his  griefs !  The  earth  closes  over  him — 
the  grass  springs  from  the  kindred  sod,  the  only  monu- 
ment of  the  miserable — moistened  by  no  tears,  save  the 
dews  from  heaven !  The  night  wind,  while  it  wings  its 
flight  across  "the  narrow  house,"  sings  his  last — sad — 
only — requiem — HE  WAS — he  is  gone,  and  all  that  apper- 
tained to  him,  {5  forgotten  forever !  The  events  of  this 
cause  are  no  longer  remembered,  the  reproach  which  you 


134:  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

affixed  to  him,  is  no  longer  felt  by  their  intended  victims, 
but  you  and  yours,  those  whom  you  represent,  and  those 
who  shall  come  after  you,  shall  feel  it.  The  verdict  of 
this  day,  shall  be  imperishably  inscribed  upon  the  records 
of  this  court,  "  and  many  an  error,  by  the  same  example, 
will  rush  into  the  State." 


CHAPMAN    CASE. 


COMMONWEALTH  OF  PENNSYLVANIA  v.  LUCRETIA  CHAPMAN, 

OTHERWISE   CALLED   LUCRETIA   ESPOS  V   MlNA. 

ID  the  Court  of  Oyer  and  Terminer ;  held  at  Doylestown, 
Bucks  county,  Pa.,  February  Term,  1832. 

SKETCH  OF  FACTS. 

This  remarkable  case  which  excited  popular  attention 
throughout  the  whole  country,  may  be  condensed  in  the 
following  statement :  Mr.  Chapman,  a  prominent  school 
teacher  of  great  respectability,  and  the  head  of  a  family, 
consisting  of  a  wife  and  five  children,  died,' after  a  slight 
indisposition,  on  the  23d  July,  1831.  Reports  of  foul  play 
having  been  extensively  circulated,  the  body  of  the  de- 
ceased was  exhumed  some  three  months  after  its  inter- 
ment, and  upon  the  report  of  medical  experts  engaged  in 
the  post  mortem  examination,  a  charge  of  murder,  by 
poison,  was  preferred  against  the  widow,  and  a  young 
Mexican,  by  the  name  of  Lino  Amalia  Espos  y  Mina, 
who  had  been  domiciled  in  the  family  at  the  time  of  Mr. 
Chapman's  death. 

Through  the  efforts  of  her  counsel,  Mrs.  Chapman, 
who  had  been  jointly  indicted  with  her  alleged  paramour 
and  accomplice,  was  given  a  separate  trial,  which  re- 
sulted in  her  acquittal,  on  the  25th  February,  1832. 

The  following  named  gentlemen  appeared  as  counsel : 

For  the  Commonwealth. 
Messrs.  THOMAS  Ross,  and  WILLIAM  B.  REED. 

For  the  Prisoner. 
Messrs.  PETER  McCALL,  and  DAVID  PAUL  BROWN. 

(135) 


136  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 


SPEECH  IN  CHAPMAN  CASE. 


WITH  DEFERENCE   TO    THE  COURT: 

Laboring;  as  I  do,  and  as  you  gentlemen  of  the  jury 
must  perceive,  under  a  severe,  painful,  and  distressing  in- 
disposition, although  permitted  to  commence  my  remarks, 
it  is  far  from  being  certain,  that  I  shall  be  enabled  satis- 
factorily to  conclude  them.  As  respects  the  advocate, 
this  is  a  matter  of  indifference,  compared  with  the  all- 
absorbing  interest  of  the  defendant.  However,  if  fate 
should  decree  this  speech  to  be  rny  last,  I  do  not  know 
that  my  professional  or  earthly  career,  can  be  more 
happily  or  more  honorably  terminated,  than  in  the  just 
defence  of  an  oppressed  fellow  creature — a  woman — hap- 
less, helpless,  friendless,  and  forlorn. 

This  case  is  one  of  no  ordinary  importance,  I  may 
venture  to  say,  even  in  your  consideration ;  and  to  me,  it 
is  a  subject  of  awful  and  overwhelming  interest  and  re- 
sponsibility. Your  position,  however  irksome  it  may 
be,  is  far  less  painful  than  mine,  since  it  is  within  your 
power  to  do,  what  I  can  only  solicit;  since  you  are  able 
to  avoid,  what  I  can  only  deprecate. 

I  appear  before  you,  gentlemen  of  the  jury,  a  stranger 
in  behalf  of  a  stranger;  but  I  rejoice  in  the  reflection 
that  justice  knows  no  distinction,  either  local  or  temporal 
or  personal ;  but  is  the  same  at  all  times,  in  all  places, 
and  to  all  persons.  The  only  distinction  that  she  regards, 
is  the  distinction  between  virtue  and  vice — between  inno- 
cence and  crime;  and  it  is  upon  justice,  as  thus  under- 
stood, that  we  confidently  rely. 


CHAPMAN  CASE.  137 

If,  indeed,  it  were  necessary  that  your  sympathies 
should  be  appealed  to,  what  subject  more  fruitful  than 
that  which  is  here  exhibited ;  what  more  sorry  or  more 
solemn  perspective,  than  that  by  which  we  are  now 
surrounded  and  appalled?  An  individual  who  has  run 
more  than  half  the  race  allotted  to  mankind,  stands  here 
accused  of  the  highest  offence  known  to  the  laws  of  the 
land  ;  that  individual  a  female,  with  whose  character  we 
are  ever  accustomed  to  associate  all  that  is  lovely  in 
tenderness,  affection  and  fidelity.  That  female  a  wife  ! — 
charged  with  the  deliberate  murder  of  the  husband  of 
her  affections — the  partner  of  her  bosom.  That  wife  a 
mother! — stigmatized  and  denounced  as  the  fell  destroyer 
of  the  father  of  her  infant  children. 

There  can,  I  say,  be  nothing  in  reality  or  fancy,  to  add 
poignancy  to  the  accumulated  and  unparalleled  afflictions 
of  such  an  occasion.  Did  I  say  nothing  ?  Alas,  gentle- 
men of  the  jury,  there  is  still  one  step  further  ere  the  soul 
is  "  supp'd  full  of  horrors  " — the  conviction  of  the  de- 
fendant. Let  us  pause  and  maturely  meditate  ere  that 
awful  step  shall  be  taken — ere  we  deprive  a  fellow  crea- 
ture of  that  life  which  we  cannot  give,  and  which  when 
once  taken,  we  never,  never  can  restore.  Such  a  convic- 
tion completes — consummates — all  that  can  be  conceived 
of  anguish  on  this  side  of  the  grave ;  and  therefore  it 
should  be  founded  upon  the  most  indubitable  proof.  If 
the  evidence  be  questionable  or  equivocal,  if  the  probation 
bear  a  hinge  or  loop  to  hang  a  doubt  on,  the  obligations — 
the  sacred  obligations  of  the  law,  throw  a  vast  and  inevit- 
able preponderancy  in  the  scale  of  the  defence.  I  say  an 
inevitable  preponderancy  ;  and  in  saying  this,  let  us  not 
lose  sight  of  another  legitimate  subject  of  preliminary 
remark  and  reproach,  which  has  obtruded  itself  upon  this 
cause ;  namely,  the  storm,  the  tempest,  the  whirlwind  of 
prejudice,  by  which  the  unfortunate  though  guiltless 
defendant,  has  been  assailed  and  surrounded,  from  the 
moment  of  these  charges  having  been  preferred.  No  ear 


138*         FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

has  been  protected  from  the  accursed  hebanon — the  lep- 
rous distilment  of  pernicious  rumor ;  of  busy  and  active 
fabrication — presenting  every  variety  of  aspect,  and  unit- 
ing only  in  the  obvious  tendency,  to  injure  and  destroy  an 
unhappy  woman,  whom  it  is  our  imperious  duty  to  believe 
to  be  innocent,  till  her  guilt  shall  be  established.  That 
storm  of  prejudice  still  rages,  and  still  let  it  rage.  Thank 
Heaven,  there  is  yet  one  refuge  left  for  the  innocent  and 
oppressed ;  there  is  one  arm  at  least  that  is  powerful  to 
save.  That  refuge,  is  the  sacred  temple  of  justice  ;  that 
arm,  the  omnipotent  arm  of  the  law ;  directed  as  we  are 
bound  to  believe,  even  in  its  wordly  influence,  by  a  sover- 
eign and  overruling  power.  There  is  a  special  provi- 
dence, we  are  informed  by  the  Book  of  books,  even  in 
the  fall  of  a  sparrow ;  and  it  may  therefore  readily  be 
conceived,  that  the  agonies,  the  throes,  the  torments  of 
the  human  heart,  are  not  altogether  unnoticed  subjects  of 
regard,  to  the  great  Creator  of  earth  and  heaven. 

Yet  still,  gentlemen  of  the  jury,  terrible  as  it  would  be 
that  the  life  of  the  defendant  should  be  wantonly  and 
unjustly  sacrificed,  it  would,  nevertheless,  be  comparatively 
unimportant.  Time,  the  great  physician,  may  heal  the 
wounds  inflicted  upon  the  bosom  of  social  or  domestic 
peace;  the  life  and  the  death  of  the  prisoner  may  bo 
alike  forgotten  ;  but  avert  if  you  can  the  sacrilegious 
blow,  that  is  aimed  at  the  maternal  bosom  of  the  law ;  the 
pillow  where  we  must  all  repose  in  the  hour  of  peril  and 
distress — claim  safety  there,  and  have  that  claim  allowed. 

The  life  of  one,  or  of  fifty  individuals,  may  be  con- 
sidered as  a  mere  unit  in  the  vast  sum  of  human  exist- 
ence— a  mere  pageant  upon  the  extended  theatre  of  human 
action ;  but  beware  of  the  corruption  of  the  sacred  sources 
of  justice,  "  the  fountains  from  the  which  our  current 
runs,  or  else  dries  up  " — the  streams  whereof,  in  the  cir- 
cling eddies  of  life,  we  are  at  one  period  or  another  all 
compelled  to  drink.  Beware  of  this,  if  not  for  the  hap- 
less being  now  upon  her  trial,  beware  of  it  for  yourselves, 


CHAPMAN  CASE.  139 

for  the  community,  for  a  helpless  and  an  endless  posterity. 
"We  do  not  ask  you  to  acquit  an  offender ;  but  we  do  ask 
you,  and  the  hardest  heart  cannot  refuse  us  this,  not  to 
substitute  the  charge  for  the  offence — the  rumor  for  the 
evidence — the  suspicion  for  the  guilt.  If  you  permit  the 
sacred  ermine  of  justice  to  be  once  stained  or  polluted  by 
the  blood  of  the  guiltless,  not  all  the  spices  of  Arabia 
shall  ever  purify  it ;  not  all  the  rivers  of  Damascus  shall 
ever  wash  it  clean. 

That  there  has  been  a  death,  no  man  denies ;  and  in 
this  valley  of  death,  no  man  has  a  right  to  wonder ;  the 
wonder  rather  is,  that  we  should  live.  We  appear  in 
the  morning,  and  are  cut  down ;  and  we  wither  ere  the 
setting  sun.  But  the  laws  of  the  India  Empire,  have  no 
existence  here.  The  unoffending  widow  is  not,  with  us, 
dedicated  or  consigned  to  the  funeral  pyre,  as  the  barbar- 
ous penalty  of  survivorship.  The  loss  of  one  member  of 
the  community,  is  not  diminished  by  the  unjust  sacrifice 
of  another.  Absolutely  the  evil  is  doubled,  and  relatively 
its  consequences  are  incalculably  increased ;  as  the  ex- 
ample largely  contributes  to  enfeeble  and  impair  the 
general  tenure  and  sanctity  of  life. 

But,  gentlemen  of  the  jury,  if  the  mere  death  of  a 
husband,  were  to  subject  his  relict  to  such  bodily  tor- 
tures, upon  what  principle  is  it,  that  her  character  and 
her  hopes,  and  the  hopes  and  happiness  of  those  who  be- 
long to  her,  are  to  be  eternally  blasted  and  destroyed  ? 

The  prosecution,  not  content  with  this  single  victim, 
embraces  all  that  is  dear  to  her  "in  one  fell  swoop."  The 
daughter  who  has  been  examined  before  you — as  through 
the  perjury  of  the  child,  the  life  of  the  mother  only  can 
be  reached — may  be  considered  on  her  trial.  There  is  no 
difference  between  extirpating  the  tender  ivy,  and  hewing 
down  the  parental  oak,  to  which  it  clings,  for  its  nurture, 
its  shelter  and  support.  There  is  no  difference  between 
sacrificing  this  artless  and  interesting  girl — tearing  the 
tender  flower  from  its  native  stalk,  and  destroying  a 


140          FORENSIC   SPEECHES   OF    DAVID   PAUL   BROWN. 

loving  and  beloved  mother,  at  the  very  period  of  life, 
when  of  all  others,  her  attention  and  protection  are  most 
required. 

Nay — the  ravages  of  the  commonwealth,  extend  even 
further  than.  this.  To  say  nothing  of  the  aged  parent,  of 
whom  she  so  pathetically  speaks  in  one  of  her  letters,  and 
whom  she  so  forcibly  compares  to  the  patriarch  Jacob,  on 
the  loss  of  his  son  Joseph,  whose  sorrows  were  so  great 
that  he  refused  to  be  comforted ;  those  prattling  innocents 
whom  you  have  here  seen  in  their  mother's  arms,  smiling 
as  it  were,  at  the  glittering  sword  of  justice,  suspended 
over  a  mother's  head,  neither  plotting  nor  fearing  harm, 
even  their  fate  depends  upon  the  issue  of  this  cause. 

The  time  shall  come,  and  that  ere  long,  when  your  ver- 
dict, should  it  affix  crime  to  a  mother's  name,  will  enter 
deeply  into  their  souls ;  the  worm  that  never  dies  shall 
prey  upon  their  hearts  through  life ;  and  the  curse  that 
never  spares,  shall  stigmatize  their  memory  when  dead. 
And  long — long  after  their,  bodies  have  quietly  mingled 
with  their  sister  clods  of  the  valley ;  long  after  the  eternal 
doors  of  the  narrow  house  shall  have  closed  upon  them, 
their  reputations,  dearer  far  than  life,  shall  be  blurred  and 
blasted,  by  the  odious,  and  recorded  imputations  of  this 
day. 

But,  say  the  learned  counsel,  these  children  are  merely 
introduced  for  effect.  We  can  only  say,  that  they  were 
not  introduced  by  us.  "We  require  no  such  aid  against 
the  prosecution ;  but  as  I  have  not  requested  their  pres- 
ence, neither  have  I  opposed  it.  It  demands  a  bolder 
spirit  than  mine,  to  defy  the  laws  of  nature,  or  to  stand 
between  the  children  and  the  yearning  bosom  of  an  afflicted 
mother,  at  that  awful  moment,  when  you  are  about  to  de- 
termine, whether  or  not,  they  shall  be  separated — ay, 
separated  for  ever. 

I  agree,  however,  with  the  learned  counsel,  that  thus 
horrible  as  the  consequences  would  be,  nevertheless,  if 
guilty,  those  consequences  supply  no  defence.  I  advert 


CHAPMAN  CASE.  141 

to  them  only  for  the  purpose  of  securing  a  becoming  and 
just  estimate  of  the  amount  at  stake.  Though  we  decide 
like  fate,  let  us  feel  like  men ;  and  if  the  defendant  were 
ten  times  guilty,  where,  let  me  ask,  is  the  man,  and  who 
would  envy  his  feelings,  that  could  resolutely  and  reck- 
lessly pursue  the  prosecution  of  such  a  case,  while  with 
every  step  he  takes,  he  tramples  upon  the  feelings  of  a 
bleeding  heart. 

Having  said  thus  much  of  the  outlines  and  general 
character  of  this  case,  and  of  those  emotions  which  belong 
to  it,  let  us  approach  more  nearly,  and  at  once  proceed  to 
examine  its  more  particular  and  essential  features,  which 
array  and  present  themselves  under  the  following  in- 
quiries : 

I.  Was  the  deceased  poisoned  ? 

II.  By  whom  ? 

There  was,  as  I  have  said,  a  death ;  not  sudden — the 
deceased  was  ill  nearly  a  week :  "Not  in  the  prime  of  life, — 
he  was  advanced  in  years,  and  his  sun  was  fast  descending 
to  the. dark  horizon  of  the  grave:  Not  unexpected — ex- 
pected by  himself,  calculated  upon,  as  appears  by  his  letter 
to  the  parson  a  short  time  after  he  was  taken  ill ;  and 
by  his  conversation  with  Mr.  Vandegrift,  a  few  days  pre- 
ceding his  demise. 

But  before  we  enter  regularly  upon  the  discussion  of 
those  inquiries,  there  are  some  other  features  of  the  argu- 
ment or  address  of  my  ingenious  adversary,  to  which  I 
must  invite  your  attention.  This  cause  has  been  managed 
for  the  prosecution  with  great  ability,  and  I  am  compelled 
to  add,  with  unexampled  zeal.  The  gentleman  closed  his 
remarks  last  evening,  with  a  beautiful  passage  from  An- 
astasius,  exhibiting  the  reliance  of  guilty  parents  upon 
the  pure  petitions  of  their  infant  children  at  the  throne  of 
Divine  Grace.  The  passage  was  well  chosen,  and  most 
admirably  applied.  But  I  marvel  much,  that  the  same 
gentleman  who  so  strenuously  deprecated  the  influence  of 
sympathy  in  behalf  of  the  friendless  prisoner,  should  have 


14:2  FORENSIC   SPEECHES   OP  DAVID   PAUL   BROWN. 

condescended  so  frequently  to  invoke  it  in  support  of 
himself  and  his  colleague. 

You  are  told  in  the  very  outset  of  his  discourse,  that 
unless  this  prosecution  should  prove  successful,  the  fault 
will  be  attributed,  not  to  any  deficiency  of  proof,  but  to  a 
deficiency  of  ability  on  the  part  of  the  officers  of  the  com- 
monwealth ;  that  they  forsooth  will  suffer  in  public  esti- 
mation. They  have  given  you  "  the  ocular  proof"  of  their 
unquestionable  capacity.  But  suppose  it  were  otherwise  ; 
has  it  come  to  this,  that  for  the  purpose  of  gratifying 
vaulting  ambition — for  the  purpose  of  inflating  profes- 
sional pride — for  the  purpose  of  avoiding  individual 
mortification,  the  majestic  bark  of  justice  shall  be  driven 
from  her  moorings,  and  the  liberty  and  lives  of  the  com- 
munity set  adrift?  If  they  have  harnessed  themselves 
to  the  car  of  the  commonwealth,  and  its  massive  weight 
is  beyond  their  strength,  are  you  to  listen  to  their  suppli- 
cations for  help  ? — are  you  to  apply  your  shoulders  to  the 
wheels  ?  If  Phreton  will  assume  the  reins,  and  direct  the 
chariot  of  Pho3bus,  he  deserves,  and  should  endure,  the 
fatal  consequences  of  his  temerity. 

The  counsel  have  not,  it  is  true,  invoked  the  aid  of 
little  children  in  their  distress ;  it  would  have  been  wiser 
had  they  followed  the  Egyptian  example ;  yet  they  have 
prayed  most  lustily  for  themselves,  but  Justice  is  inexor- 
able, and  deaf  to  their  entreaties ; — entreaties,  which,  per- 
mit me  to  say,  to  my  untutored  ear,  resemble  less  the  mild 
and  mellowed  plainings  of  a  contrite  spirit,  than  the  wild 
shrieks  of  a  famished  vulture,  just  pouncing  upon  its 
prey.  I  ask  no  sympathies  for  myself;  I  had  almost  said 
I  disdain  them ;  but  I  openly  protest  against  their  enlist- 
ment for  the  prosecution.  Where  is  the  man  so  reckless 
and  so  lost  to  honor,  who  in  this  momentous  struggle 
against  all  odds,  for  the  life  of  a  fellow  creature,  will  cast 
the  sword  of  Brennus  into  the  scale  of  the  commonwealth  ? 
If  there  be  such  a  man,  let  him  deny  his  name,  as  he  must 
long  since  have  abjured  his  nature. 


CHAPMAN   CASE. 

Notwithstanding  this  appeal,  the  counsel  assure  us — 
assure  our  client  of  their  kindness,  their  tenderness,  and 
commiseration.  Timeo  Danaos — et  dona  ferentes — may  it 
please  your  honors :  this  is  the  kindness  of  Judas,  kiss- 
ing to  betray — the  tenderness  of  the  vulture,  covering  to 
devour — the  commiseration  of  the  crocodile,  mingling  his 
tears  with  the  life-blood  of  his  expiring  victim.  We  will 
endeavor  to  protect  ourselves  from  their  open  hostility, 
but  we  earnestly  implore  you,  to  guard  and  defend  us, 
against  the  tender  mercies  of  such  a  prosecution. 

As  a  specimen  of  their  deep  condolence  with  the  prisoner, 
they  at  first  attempt  by  the  assistance  of  police  officers,  to 
deprive  her  .of  the  safeguard  of  character ;  and  miserably 
failing  in  this,  you  are  next  told  by  them,  that  character 
is  the  very  worst  defence  that  any  cause  can  have.  "Will 
this  court  and  jury  recognize  that  doctrine?  Can  they 
reconcile  those  inconsistent  attempts  ?  Character  is  always 
a  good,  and  sometimes  an  only  defence,  in  doubtful  cases ; 
and  surely  it  is  conceding  enough  to  our  opponents,  to 
admit  that  this  is  a  doubtful  case.  Character  is  a  broad 
and  secure  shield,  against  which  the  pointless  shafts  of 
suspicion  break  themselves  in  vain.  If  the  advantages  of 
a  spotless  reputation,  be  at  all  proportioned  to  the  diffi- 
culties encountered  in  its  acquisition,  it  may  be  confidently 
relied  on.  The  attainment  of  character  is  an  uphill  work ; 
the  ascent  is  difficult,  laborious,  and  treacherous ;  but 
when  we  reach  the  glorious  summit,  after  all  our  toils  and 
perils  past,  Fame,  with  her  own  hand,  arms  us  at  all 
points  in  celestial  panoply,  which,  like  the  polished  mirror, 
reflects  without  retaining,  the  calumny,  reproaches,  and 
odium  that  assail  it.  Reputation,  it  is  true,  may  be  gradu- 
ally lost ;  its  safeguards  gradually  impaired;  but  what- 
ever may  be  the  particular  and  hackneyed  exceptions 
which  human  nature  supplies,  I  hold  it  to  be  a  well  estab- 
lished general  rule,  that  it  is  never  suddenly  surrendered 
or  abandoned,  without  some  inducement  or  temptation, 


144  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

either  actual  or  imaginary,  commensurate  with  the  im- 
portance of  the  sacrifice. 

There  is  one  other  subject  of  comment,  before  I  return 
to  the  systematic  consideration  of  this  case,  under  the  in- 
quiries proposed ;  and  that  is,  the  inference  of  crime  from 
the  supposed  existence  of  motive ;  an  inference  from  an 
inference. 

In  human  tribunals,  we  generally  ascertain  the  motive 
from  the  act,  and  not  the  act  from  the  motive ;  and  this 
improvement  in  moral  philosophy,  for  which  we  are  in- 
debted to  our  learned  friends,  serves  to  remind  me  of  a 
story  related,  not  of  an  "Egyptian,"  but  a  Turk,  which  I 
may  be  pardoned  in  recounting.  Conforming  to  the  sub- 
lime ordinances  of  the  Koran,  the  Turks,  it  seems,  had 
forbidden  under  severe  penalties,  an  indulgence  in  wirie, 
or  any  other  intoxicating  beverage.  An  officer  of  the 
government  observing  an  individual  with  a  jar  upon 
his  head,  and  discovering  that  it  contained  the  juice  of 
the  grape,  summoned  him  forthwith  before  the  Mufti, 
and  there  preferred  his  complaint.  The  alleged  offender 
acknowledged  the  wine,  but  denied  the  offence ;  where- 
upon the  accuser  rested  his  charge,  as  the  prosecution 
here  does,  upon  the  probability  of  guilt,  from  the  strength 
of  the  temptation  or  motive  to  commit  it.  Upon  which, 
the  prisoner  observing  in  the  hand  of  his  adversary  a 
glittering  scimitar,  immediately  turned  to  the  magistrate, 
and  accused  the  officer  of  murder;  and  when  called  upon 
to  sustain  his  charge,  relied  upon  the  reasoning  that  had 
been  urged  against  himself.  "That  shining  blade,"  said 
he,  "  is  an  instrument  of  death ;  I  find  it  drawn  and  naked 
in  your  hand ;  if  the  mere  ability  to  commit  crime,  be  an 
evidence  of  crime  committed,  you  stand  arraigned  and 
condemned  upon  your  own  principle."  It  is  almost  un- 
necessary to  add,  that  the  Turk  was  discharged. 

"  Man  is  prone  to  evil  as  the  sparks  fly  upwards ;"  but 
we  should  be  careful,  not  too  far  to  confirm  this  doctrine, 
by  its  unthinking  application.  The  object  of  evidence  is 


CHAPMAN  CASE.  145 

the  establishment  of  facts;  those  facts,  when  established, 
are  what  we  denominate  proof.  But  if  from  mere  lia- 
bility or  inducement  to  evil,  we  are  to  draw  satisfactory 
conclusions  of  crime,  why,  then,  to  be  sure,  all  mankind 
are  flagitious  offenders,  and  we  the  most  of  all.  You  have 
nothing  to  do  but  to  read  the  indictment,  to  run  over  a 
string  of  truisms,  or  popular  brocards  on  the  subject  of 
human  iniquity,  and  the  business  of  destruction  is  done. 
Your  courts  of  justice  virtually  become  slaughter  houses, 
and  you  yourselves,  the  ministers  of  the  law,  instead  of 
being  sacrificers,  are  converted  into  butchers. 

There  .is  another  view  taken  by  the  counsel  of  this 
case,  which,  for  its  novelty,  is  deserving  of  attention.  He 
contends  that  you  must  either  find  the  prisoner  guilty,  or 
pronounce  her  entirely  innocent.  If  he  mean  that  the 
charge  contained  in  the  indictment  cannot  be  qualified 
or  reduced,  so  as  to  admit  of  a  conviction  for  any  infe- 
rior offence, — if,  in  other  words,  he  meant  that  she  must 
be  capitally  convicted,  or  not  at  all,  I  concur  with  him. 
But  if  he  -intended  to  signify,  and  so  seemed  to  set  the 
current  of  his  thoughts,  that  you  must  either  absolve  her 
from  every  act  of  imprudence  and  indiscretion,  or  else 
convict  her  of  this  heinous  offence,  I  deny  it  totally. 
Even  a  general  want  of  innocence  would  not  be  in  itself, 
sufficient  evidence  of  the  perpetration  of  a  particular 
crime.  If  the  mysteries  of  the  case,  as  is  said,  cannot 
tally  with  the  idea  of  innocence,  they  must  cease  to  be 
mysteries,  and  become  self-evident  facts.  If  they  are  mys- 
teries, they  may  comport  with  either  innocence  or  guilt, 
and  in  that  event,  the  condition  of  the  defendant  is  the 
best. 

Aware  of  their  difficulties,  you  are  told  that  crimes  of 
this  description  are  always  committed  in  such  a  way  as 
not  easily  to  be  discovered.  So  are  most  offences ;  but 
does  it  follow  therefore,  that  where  they  are  not  discovered, 
we  are  to  guess  at  a  verdict,  and  thereby  entail  upon  our 
consciences  a  heavier  crime  thau  that  which  we  unjustly 

10 


FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

condemn?  "What  can  we  reason  but  from  what  we  know? 
It  is  possible,  it  is  true,  that  there  may  be  guilt  even 
where  it  cannot  be  ascertained  ;  but  it  is  also  possible 
there  may  not  be,  and  all  that  it  is  requisite  should  be 
said,  is,  that  the  benefit  of  the  possibility  is  with  us,  and 
the  necessity  of  distinct  and  conclusive  proof,  with  them. 
If  they  fail  in  this,  the  cause,  for  all  worldly  purposes,  is 
ours ;  and  the  punishment  of  the  offender  must  be  left 
to  that  omniscient  Power,  to  whose  vision  all  the  depths, 
darknesses,  and  recesses  of  the  soul  are  revealed.  "  Ven- 
geance is  mine,  saith  the  Lord,  and  I  will  repay."  Let 
not  sublunary  tribunals  audaciously  and  impiously  pre- 
sume to  invade  the  sacred  sanctions — to  usurp  the  high 
prerogative  of  heaven. 

To  return  now,  from  this  discursive  flight  of  the  coun- 
sel— in  which  I  confess  I  have  been  compelled  to  pursue 
him — to  the  more  essential  and  substantial  merits  of  the 
charge,  I  will  in  the  first  place  proceed  to  show  you — 
instead  of  adopting  the  chronological  order  of  events — 
which  probably  would  have  been  the  most  perspicuous  ar- 
rangement— that  there  was  no  poison;  and  without  mak- 
ing it  an  independent  ground  of  observation,  I  shall  also 
endeavor  to  satisfy  you,  should  I  even  fail  in  my  reliance 
upon  this  first  broad  shield  of  the  defence,  that  there  is 
no  sufficient  reason  for  believing  that  this  defendant  par- 
ticipated in  the  offence. 

It  was  a  practice  adopted  by  Sir  Matthew  Hale,  one  of 
the  greatest  ornaments  that  ever  adorned  the  criminal 
jurisprudence  of  any  country,  never  to  allow  any  man  to 
be  convicted  of  a  murder,  until  it  was  at  least  distinctly 
shown  that  a  homicide  of  some  one  had  been  committed. 
Our  own  experience  has  furnished  an  ample  illustration 
of  the  wisdom  of  this  rule.  In  a  sister  State,  two  men 
were  accused  of  the  death  of  a  third,  and  upon  being 
arraigned,  they  both  pleaded  guilty  4;o  the  charge,  will- 
ing,  no  doubt,  to  terminate  the  horrors  of  remorse,  of 
which  they  had  long  been  the  prey.  The  plea  of  guilty 


CHAPMAN   CASE.  14  I 

to  such  a  charge,  is  an  unusual  one  ;  the  public  journals 
teemed  with  various  accounts  of  the  case;  the  day  ap- 
pointed for  their  execution  rapidly  approached,  when 
lo !  the  murdered  man  appeared  in  their  behalf,  not  like 
"  blood-bolter'd  Banquo,"  "  with  twenty  trenched  gashes 
on  his  head,"  but  in  the  possession  of  full  health  and 
vigor,  and  with  far  better  prospects  of  protracted  life, 
than  those  by  whom  he  was  alleged  to  have  been  slain. 
The  explanation  is  this:  those  two  men  who  stood  ac- 
cused, had  lived  in  the  same  neighborhood  with  him  , 
they  had  encountered  him  in  an  adjacent  wood ;  and 
having  had  an  ancient  grudge  against  him,  they  pro- 
ceeded to  wreak  their  vengeance,  and  left  him,  as  they 
supposed,  lifeless. — This,  however,  was  a  mistake,  for 
gathering  himself  up,  after  they  had  left  him,  and  un- 
willing again  to  confront  them,  he  set  out  forthwith  to 
some  of  the  Southern  States,  as  he  had  previously  con- 
templated, where  he  remained,  until  apprised  of  the 
peril  to  which  his  alleged  murderers  were  subjected ; 
when  he  generously  presented  himself,  at  the  scene  of 
trial,  and  afforded  the  ocular  proof  of  their  innocence. 

The  dead  body  is  not  more  necessary,  than  the  corpus 
delicti, — I  adopt  Dr.  Togno's  doctrine  in  its  greatest  lati- 
tude, when  he  says  "  no  poison — no  poisoning ;"  and  it 
will  afford  me  infinite  pleasure  also  to  show,  that  this 
conclusion  of  a  most  estimable  man,  and  intelligent  phy- 
sician, is  not  only  obviously  correct  in  itself,  but  is  in 
entire  consonance  with  undoubted  authority,  and  with 
the  development  of  every  feature,  in  the  course  of  this 
important  and  protracted  investigation. 

Montmahou,  in  his  "  Manuel  des  Poisons,"  page  9,  says, 
"  the  physician  will  not  .pronounce  that  there  has  been  a 
poisoning,  until  he  has  found  the  poison,  and  can  desig- 
nate and  name  it."  And  again,  in  page  11,  "all  the 
medico-jurists  agree  in  thinking,  that  in  order  to  pro- 
nounce with  confidence,  it  is  necessary  to  have  found 
the  poison."  And  further,  in  page  13,  he  observes,  after 


148  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

stating  the  importance  of  a  chemical  analysis,  "  we  ought 
to  use  the  greatest  attention  in  the  execution  of  the 
various  processes  employed ;  it  should  be  severe,  com- 
plete, and  have  for  its  result  the  reduction  of  the  metal. 
Indeed,  we  have  arrived  at  the  present  day,  by  rigorous 
analysis,  to  discover  the  thousandth  part  of  a  grain  of 
poisonous  substance,  mixed  in  liquids,  in  solids,  or  even 
combined  with  our  own  tissues.  It  would  be  criminal  to 
neglect  the  means  which  chemistry  offer  us,  in  order  to 
hold  to  appearances  often  deceitful." 

The  learned  counsel  has  told  you,  however,  that  as  to 
his  chemical  tests,  he  does  not  rely  upon  them — you  may 
throw  them  entirely  out  of  the  case — Wonderful  conde- 
scension !  If  you  throw  them  out  of  the  case,  do  you  not 
at  once  perceive,  that  the  condition  of  the  prosecution 
is  infinitely  better,  than  if  they  are  permitted  to  remain? 
We  insist  upon  them — we  rely  upon  them  as  a  practical 
refutation  of  three-fourths  of  the  hypotheses  and  theories, 
which  cling  around  the  trunk  of  this  charge,  "  like  ivy 
to  old  oak,  to  hide  its  rottenness."  The  doctors  all  agree 
that  no  arsenic  was  reduced,  upon  the  great  and  final  test 
being  applied.  Every  body  that  has  written,  and  all  who 
have  spoken  upon  the  subject,  admit,  that  the  reduction 
of  the  metal  is  the  only  infallible  proof  of  its  existence  ; 
and  that  it  can  always  be  reduced,  even  where  the  sixth 
part  of  a  grain,  or  one-thirtieth  part  of  the  quantity 
necessary  to  produce  death,  remains  in  the  system.  Now, 
as  it  is  admitted  on  all  hands  that  the  chemists  were  skil- 
ful, and  that  all  proper  means  were  resorted  to  by  them 
for  the  purpose  of  discovering  the  arsenic — as  it  is  admit- 
ted on  all  hands  that  it  might  have  been  discovered  if  it 
existed — and  as  it  is  also  admitted  that  it  was  not  detec- 
ted, can  anything  be  plainer  than  that  it  did  not  exist — 
and  that  all  the  reasoning  derived  from  equivocal  patho- 
logical symptoms,  and  an  imperfect  anatomical  examina- 
tion, are  totally  vague  and  visionary  ? — more  particularly, 
inasmuch  as  I  shall  have  occasion  to  show  you,  that  the 


CHAPMAN  CASBs*,.  149 

appearance  of  those  symptoms,  and  the  results  of  that 
examination,  are  not  peculiar  to  cases  of  poisons,  but 
belong  also  to  many  cases  of  death  from  natural  causes. 
To  strike  the  chemical  analysis  from  the  evidence,  there- 
fore, is  no  stretch  of  magnanimity  on  the  part  of  our 
ingenious  adversaries,  but  upon  the  contrary  serves  only 
to  show,  that  in  the  pursuit  of  blood,  they  have  taken 
one  step  too  far — one  important  step,  and  thereby  re- 
deemed us  from  the  operation  of  all  that  had  previously 
been  attempted. 

But,  say  they,  if  we  cannot  gratify  your  eyes,  by  pro- 
ducing the  arsenic  in  its  metallic  form,  we  can  at  least 
tickle  the  nose  by  the  alliaceous  odor,  which  one  of  the 
experiments  emitted.  But,  gentlemen,  you  are  not  to  be 
led  by  the  nose  in  a  case  of  this  character ;  much  less  are 
you  to  be  governed  by  the  noses  of  others.  Mr.  Clemson, 
the  gentleman  who  titillated  his  olfactory  eo  often  during 
the  cause,  with  the  pungent  and  fragrant  Natchitoches  or 
Maccouba,  and  who  was  the  only  individual  who  arroga- 
ted to  himself  a  superiority  in  the  sense  of  smelling,  did, 
it  is  true,  pronounce  boldly  upon  the  alliaceous  odor, 
as  an  infallible  arsenical  test;  but  he  at  the  same  time 
conceded,  and  Dr.  Mitchell  proved,  and  we  all  know, 
that  the  faculty  of  smelling  is  the  most  fallible  and 
treacherous  of  all  the  human  senses, — confounding  dif- 
ferent odors — affected  by  the  state  of  mind  or  body — the 
nature  of  the  atmosphere — the  condition  of  the  health — 
and  an  infinite  variety  of  influences  unnecessary  to  be 
considered.  It  is  admitted  the  world  over,  that  the 
sight,  which  even  itself,  as  Macbeth  says,  ds  often  "  made 
the  fool  of  the  other  senses,"  is  in  point  of  accuracy  and 
perfection,  very  superior  to  the  smell.  We  perhaps  may 
be  able,  therefore,  best  to  ascertain  the  value  of  Mr.  Clem- 
son's  olfactory,  by  testing  it  by  the  accuracy  of  his  vision. 
You  all  remember,  when  asked  by  me,  whether  he  could 
tell  the  arsenical  ring  by  its  appearance,  he  answered 
promptly, "  yes."  I  like  a  prompt  answer,  even  in  a  case  of 


150  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

life  and  death,  when  it  is  promptly  right.  I  immediately 
produced  the  glass  tube  furnished  by  Dr.  Mitchell,  con- 
taining the  arsenical  ring,  which  was  as  immediately  de- 
clared by  the  witness  to  contain  mercury.  Dr.  Mitchell 
was  then  called  again,  and  explicitly  stated,  that  it  con- 
tained no  mercury  ;  and  he  had  a  right  to  know,  as  it  was 
his  own  preparation.  Now  after  this  failure  of  Mr.  Clem- 
son's  best  sense,  what  would  you  give  for  the  rest  ?  I 
oppose  this  dumb  witness  [exhibiting  the  tube],  against  the 
nose  of  Mr.  Clemson,  and  his  eyes  to  boot.  It  is  small, 
it  is  true,  but  it  has  a  giant's  strength.  It  is  mute,  un- 
questionably, yet  it  speaks  with  most  miraculous  organ. 

But,  again,  suppose  the  alliaceous  odor  had  been  per- 
ceived— I  deny  its  infallibility — I  deny  its  probability. 
All  writers  agree,  that  however  it  may  be  considered 
sufficient  as  a  mere  chemical  indication  of  arsenic,  and 
for  mere  chemical  purposes,  it  is  utterly  unworthy  of 
regard  as  a  matter  of  conscientious  reliance  in  a  judicial 
proceeding.  Even  Christison,*  the  god  of  their  idolatry, 
declares  it  should  be  utterly  discarded ;  and  Berzelius, 
Orfila,  Montmahou,  and  a  host  of  other  distinguished 
men,  consider  it  as  reproachful  in  the  present  state  of 
chemistry,  that  it  should  be  quoted  as  a  satisfactory, 
or  even  a  reasonable  test. 

In  page  357  of  Orfila,  the  most  celebrated  toxicologist 
of  the  age,  we  find  this  language :  "  It  often  happens 
that  doctors  charged  with  making  reports  before  a  ju- 
dicial tribunal,  affirm  the  existence  of  poisoning  by  arse- 
nious  acid,  because  they  have  found  in  the  alimentary 
canal,  matter,  which  exhales  an  alliaceous  odor  upon 
being  placed  upon  burning  coals.  We  severely  condemn 
this  conduct ;  in  effect,  the  alliaceous  character  belongs  to 
other  substances,  and  it  is  not  impossible  that  there 
should  be  developed  in  the  stomach,  during  digestion, 

*  Christison,  184.  Med.  and  Surg.  Jour.,  vol  —  page  80.  Cooper's 
Med.  Jurisprudence,  424. 


CHAPMAN  CASE.  151 

substances  which  exhale  a  similar  odor  when  heated. 
Besides,  does  it  not  often  happen,  that  we  are  mistaken 
in  the  character  of  odors?  Mr  Yauquelin  and  myself, 
were  appointed  reporters  in  a  case  of  poison.  The  suspec- 
ted matter  was  placed  on  burning  coals,  at  four  different 
times,  and  twice  only,  we  thought  we  recognized  the 
alliaceous  smell,  and  we  became  assured  soon  after,  that 
it  did  not  contain  an  atom  of  arsenic."  The  character 
of  which  we  treat,  ought  therefore  to  be  considered  as 
an  indication,  and  not  as  a  proof,  of  the  presence  of 
arsenic. 

JBerzelius,  notoriously  the  greatest  practical  chemist  in 
the  world,  and  to  whom — by  common  consent  of  all  the 
most  experienced  and  skilful  manipulators  either  in 
England  or  France — the  proudest  distinction  has  been 
accorded,  thus  expresses  himself,  in  relation  to  this 
subject.* 

"  The  reduction  only,  is  to  be  regarded  as  a  certain 
proof,  and  renders  all  other  evidence  superfluous.  When 
the  reduction  does  not  succeed,  the  result  must  be  always 
doubtful,  even  when  we  think  or  believe  we  recognize 
the  arsenical  odor,  upon  heating  with  a  blow-pipe  or 
charcoal,  the  calcareous  precipitate,  obtained  according 
to  the  method  of  Rose ;  for  an  operator,  little  habituated 
to  such  essays,  may  often  imagine  he  recognizes  in  the 
odor  of  animal  matters  contained  in  the  precipitate, 
the  presence  of  arsenic,  while  in  truth  there  is  none." 

In  addition  to  these  great  authorities,  you  have  the 
direct  testimony  of  Drs.  Bache  and  Togno ;  gentlemen 
who,  it  is  true,  have  in  all  probability,  run  not  more  than 
half  their  career  of  professional  usefulness,  yet  who  have, 
nevertheless,  in  the  Spring  of  their  fame,  afforded 
ample  assurance  of  an  abundant  harvest  of  future  emi- 
nence and  distinction.  Modest,  yet  decided  ;  skilful,  yet 
cautious;  they  draw  at  once  a  broad  and  obvious  line 

*  Berzelius,  Traite  de  Cbemie,  Tome  ii,  page  451. 


152  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

between  the  evidence,  which  will  be  sufficient  to  direct 
their  inquiries  after  mere  medical  treatment,  or  chemi- 
cal results ;  and  that  proof  upon  which  they  would  be 
disposed  to  rely  in  a  solemn  judicial  investigation.  If, 
as  medical  men,  or  chemists,  certain  observations  or  ex- 
periments may  have  regulated  their  practice  or  opinions, 
in  ordinary  matters  of  doubt ;  they  prudently  consider 
them  too  imperfect  and  fallacious,  to  form  the  basis  of 
absolute  and  conscientious  reliance,  upon  a  subject  so 
awful  and  vital  as  this.  They  require,  as  the  law  re- 
quires, that  the  best  evidence  the  nature  of  the  case 
admits  of,  should  be  produced.  They  require  that  the 
symptoms  should  be  unequivocal,  or  that  it  should  be 
reasonably  ascertained  that  no  natural  cause  of  death 
existed — before  they  feel  themselves  prepared  to  peril 
the  life  of  a  fellow  creature,  and  their  own  salvation, 
upon  the  confident  assertion  of  poison.  "  We  would  not 
be  willing,"  say  both  those  gentlemen,  "  to  decide  upon 
the  presence  of  arsenic  without  reduction,  because  we 
would  not  be  satisfied  by  any  evidence  except  what  we 
considered  the  best. — The  alliaceous  odor  is  not  to  be 
depended  upon." 

But  further ;  if  the  alliaceous  smell  indicate  arsenic,  it 
must  be,  of  course,  because  arsenic  is  there..  These  fumes, 
we  are  told,  are  the  fumes  of  arsenic ; — these  fumes,  we 
know,  become  condensed,  and  form  the  arsenical  crust  on 
the  upper  and  cooler  part  of  the  glass.  If,  therefore, 
they  were  sufficient  to  prove  its  existence,  they  were 
sufficient,  with  proper  process,  to  form  the  metal  in  its 
crystallized  shape.  I  agree  that  it  is  possible,  that  the 
odor  should  be  perceived,  without  arsenic  being  de- 
tected; because  it  is  probable  that  the  odor  may  arise 
without  the  presence  of  arsenic,  and  from  other  substan- 
ces, as  has  been  shown  ;  but  I  deny  that  the  odor  ever 
arises  from  arsenic,  so  powerfully  as  is  here  described, 
without  the  cause — namely,  the  arsenic,  being  satisfacto- 
rily ascertained  and  detected  in  its  metallic  form.  Hence 


CHAPMAN  CASE.  153 

I  infer,  that  as  zinc,  onions,  garlic,  the  phosphates,  and 
other  substances  may  produce  that  smell, — in  other 
words,  inasmuch  as  it  is  not  the  peculiar  effluence  of 
arsenic,  that  it  was  produced  from  other  substances,  and 
not  from  arsenic. 

But  say  they — there  are  the  liquid  tests,  which  al- 
though all  imperfect,  and  equivocal,  still  make  against 
the  defendant,  with  the  other  proofs  "What  are  these 
tests  ?  Let  me  test  them ;  for  without  pretending  to  be 
a  proficient  or  expert  chemist,  I  do  profess  to  know 
enough  of  the  science  for  this  case,  and  I  should  be 

O  ' 

wanting  in  my  duty  if  I  did  not.  I  have  gone  through 
all  those  experiments  myself,  with  my  own  hand ;  be- 
stowed mouths  of  attention  and  reading  upon  them,  and 
I  can  only  regret,  that  still  greater  time  has  not  been 
allowed  for  my  researches. 

The  first  test  applied,  as  an  almost  universal  detecter 
of  metals,  is  the  sulphuretted  hydrogen.  This  test,  in 
arsenical  cases,  exhibits  a  flocculent  appearance,  and 
throws  down  a  light,  clear,  yellow  precipitate.  In  the 
present  case,  the  test  was  very  doubtful,  as  is  stated  ;  the 
yellow  produced  was  a  darkish  and  dirty  yellow,  and  no 
precipitate  was  perceived.  The  other  test  was  by  the 
ammoniacal  nitrate  of  silver, — in  other  words,  nitrate  of 
silver  dissolved  in  liquid  ammonia.  This  test  should 
have  produced  a  still  darker  yellow  precipitate,  attended 
by  the  same  floccule'ncy.  It  failed  to  do  either ;  and 
even  if  it  had  done  both,  it  is  allowed  to  be  a  very  inse- 
cure test,  unless  amply  sustained  by  those  that  follow,  and 
precede  it. 

The  third  test  applied,  was  the  ammoniacal  sulphate  of 
copper,  which  presented  an  olive  green  instead  of  the 
Scheele  green,  which  is  about  the  color  of  verdigris. 
The  olive  green  may  be  obtained  much  more  perfectly 
by  this  test,  from  ginger,  stramonium,  rhubarb,  chro- 
mate  of  potassa,  and  onion  juice,  than  it  was  obtained 
in  the  present  instance. 


15i  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

I  conclude  then,  this  branch  of  my  remarks,  by  saying 
again,  that  the  restoration  of  the  metal  is  the  only  infalli- 
ble test — I  should  rather  say  proof ;  it  is  the  corpus  delicti 
itself.  The  tests,  as  they  are  called,  and  as  they  have 
been  referred  to,  are  mere  presumptions  ;  and  apart  from 
the  result,  are  not  to  be  relied  upon.  Wherever  there  is 
metal  enough,  unequivocally,  to  abide  those  tests,  the 
metal  may  be  restored  ;  and  chemists  have  succeeded  in 
reducing  less  than  the  300th  part  of  a  grain ;  and  wher- 
ever there  is  not  enough  thus  to  abide  the  test,  there  is 
not  enough  to  guess  at.  The  mode  of  restoring  the  metal, 
is  perfectly  simple,  and  I  will  take  leave  to  explain  it  to 
you.  Having  evaporated  the  liquid  containing  the  sus- 
pected matter,  to  dryness ;  the  dry  matter  mixed  with 
pulverized  charcoal,  is  placed  in  a  glass  tube  hermetically 
sealed  at  one  end.  To  this  end  you  apply  the  spirit  lamp, 
until  the  red  heat  is  produced,  when,  if  there  be  the 
slightest  portion  of  arsenic,  fumes  of  the  smell  of  garlic 
will  issue  therefrom,  and  the  metal  itself,  will,  instead  of 
fusing,  evaporate,  and  form  again  in  a  condensed  shape 
on  the  upper  and  cooler  parts  of  the  tube. 

But,  say  the  gentlemen,  "  even  had  the  prosecution 
succeeded  in  showing  that  the  metal  was  reduced,  the 
defendant's  counsel  might  still  argue  the  insufficiency  of 
that  fact."  Reduce  what  metal?  I  agree,  any  metal, 
mercury  for  instance,  would  not  be  sufficient,  but  metallic 
arsenic  would  be ;  and  no  argument,  however  ingenious^ 
could  possibly  avail  against  it ;  and  no  argument,  in  that 
case,  would  have  been  attempted.  We  unite  with  him,  in 
saying,  that  you  could  not  pretend  to  determine,  because 
you  saw  something  glittering  on  the  inner  surface  of  a 
glass  tube,  that  it  was  arsenic ;  for  even  Mr.  Clemson, 
with  all  his  eyes  about  him,  and  after  having  imbibed 
the  benefit  of  all  the  schools  of  France,  most  egregiously 
blundered  in  that  very  particular,  and  has  thereby  af- 
forded us  a  salutary  lesson  of  prudence,  from  a  lamentable 
example  of  indiscretion.  But  the  counsel  forgets,  if  he 


CHAPMAN   CASE.  155 

ever  knew,  that  it  is  not  the  mere  appearance  of  the  metal, 
upon  which  skilful  chemists  and  judicious  men  would  be 
disposed  to  rely  ;  but  that  the  ^netal  being  first  detected, 
and  its  general  nature  defined  by  the  success  of 'antece- 
dent tests,  it  is  upon  reduction  subjected  to  other  and  sub- 
sequent tests,  which  present  its  character  in  a  totally 
unquestionable  shape ;  not  dependent  on  the  sight  alone, 
the  smell  alone,  the  original  tests  alone,  the  reproduction 
alone,  or  the  final  tests,  but  upon  all  combined,  and  with 
all  the  clear  denotement  of  its  deleterious  and  peculiar 
arsenical  properties.  It  is  in  vain,  to  tell  us,  that  were  all 
these  evidences  united,  and  each  perfect  in  itself,  errors 
might  still  be  contended  for ;  since  authority,  experience, 
and  reason  concur  in  the  utter  impossibility  of  such 
errors.  1  admit,  if  you  please,  as  the  counsel  alleges,  that 
no  one  chemical  result  would  be  conclusive,  and  it  is  for 
that  very  reason  that  we  require  the  evidence  of  various 
and  combined  results — all  conducing  to  the  same  conclu- 
sion. If,  as  is  contended,  we  should  dispute  the  evidence 
in  its  aggregate,  so  much  the  stronger  was  the  necessity 
for  sustaining  its  particular  items.  Nay,  if  no  one 
chemical  result  can  form  unerring  proof,  how  much  less 
can  there  be  unerring  proof  where,  as  in  this  case,  there 
was  not  one  such  result. 

But  we  have  shown,  exclaim  the  gentlemen  trium- 
phantly, that  an  individual  of  that  house  purchased 
arsenic  in  Philadelphia,  a  few  days  preceding  the  indispo- 
sition of  the  deceased,  and  the  prisoner  was  in  town  at 
the  time  of  the  purchase.  That  the  purchase  of  arsenic, 
in  relation,  to  this  charge,  is  a  circumstance  of  guilt,  need 
not  be  a  subject  of  dispute,  provided  it  be  connected  with 
the  present  defendant.  It  is  not  so  connected.  The  alle- 
gation that  Mrs.  Chapman  was  in  town  on  the  day  the 
arsenic  was  purchased,  is  no  evidence  of  participation  in 
that  purchase.  But  the  fact  was  otherwise.  She  was  in 
the  city  with  Mina,  it  is  true,  upon  two  occasions,  but 
neither  of  those  visits  was  on  the  day  of  obtaining  the 


156  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

arsenic.  Indeed,  it  was  perfectly  inconsistent  and  absurd, 
to  suppose  that  an  individual  entirely  conversant  as  she 
was,  with  all  parts  of  Philadelphia,  and  embarked,  as  she 
is  said  to  have  been,  upon  a  dangerous  and  deadly  voyage 
— should  have  landed,  from  choice,  upon  this  perilous  and 
Ansonian  shore — should  have  selected,  for  the  first  scene 
of  iniquity,  an  establishment  in  the  very  centre  of  noto- 
riety, and  within  fifty  yards  of  the  residence  of  an  old 
acquaintance  of  herself  and  Mr.  Chapman.  Was  there 
no  Borneo's  apothecary — no  caitiff  wretch  to  vend  this 
poison  to  her — no  remote  and  obscure  "  culler  of  simples," 
upon  whom  she  could  have  more  securely  relied  in  the 
purchase  of  this  deleterious  drug  ?  Is  she  to  seek  the 
open  and  blushing  face  of  day,  for  the  purpose  of  conceal- 
ing an  object  or  danger  ? — to  believe  it  were  madness — or 
fatuity,  at  least. 

Yet,  say  our  opponents,  "admitting  even  that  Mina 
purchased  the  arsenic  without  the  defendant's  immediate 
participation,  it  was,  nevertheless,  in  prosecution  of  a 
common  intent,  agreed  upon  between  them."  If  so,  how 
do  you  dispose  of  the  argument  that  the  forged  letter, 
written  under  the  instructions  of  Mina,  days  after  the 
purchase,  and  purporting  to  be  from  that  excellent  and 
accomplished  gentleman,  Mr.  De  Cuesta,  was  communi- 
cated to  her  for  the  sake  of  whetting  her  almost  blunted 
purpose?  Where  was  the  necessity  for  it?  If  she  had 
been  previously  so  ripe  and  ready  for  this  fell  deed,  as  to 
cherish  the  damning  thought  of.  taking  her  husband's 
life — as  even  to  be  active  in  procuring  the  means  of 
death — the  fallen  one  had  already  marked  her  for  his 
own — the  last  feeble  struggle  for  redemption  had  passed 
— and  she  was  so  deeply  steeped  in  guilt  as  to  require  no 
further  lures  to  vice — as  to  defy  all  further  inducements 
to  virtue.  If  then  this  forged  letter  were  intended  by 
Mina  to  deceive  her — it  was  not,  as  the  gentleman 
imagines,  to  confirm  her  in  iniquity,  but  rather  to  win 
her  to  iniquity ;  and  if  thus  to  win  her,  it  must  have  been 


CHAPMAN  CASE.  157 

because  she  was  not  already  won — and  if  not  already 
won,  she  could  never  have  been  a  participator  in  thought 
or  act,  in  obtaining  the  poison,  which  was  procured 
several  days  before  the  letter  in  question  was  exhibited  or 
prepared. 

Taking  leave  of  this  portion  of  the  case,  and  glancing 
with  comparative  civility  at  the  testimony  of  Dr.  Bache, 
the  learned  counsel  next  springs  with  the  fury  and 
rapacity  of  the  hyena,  upon  that  of  Dr.  Togno — impugns 
its  credibility — denies  its  modesty— defames  and  defiles 
its  purity  ;  and  to  say  nothing  of  unmeasured  language, 
luxuriously  indulges  in  deliberate,  cold-blooded,  unquali- 
fied, and,  allow  me  to  add,  unwarranted  aspersion,  for 
which  the  meagre  apology  is  offered,  that  there  is  left  to 
him  but  this  alternative,  either  to  abandon  his  own  wit- 
nesses, or  speak  plainly  of  ours. — As  to  abandonment,  so 
far  as  relates  to  the  party  colored  crew,  drawn  by  the 
prosecution  from  the  prisoner's  household,  they  were,  in 
one  sense,  abandoned,  before  they  became  retainers  in  this 
cause.  In  regard  to  the  scientific  gentlemen  examined  by 
the  commonwealth,  they  have  been  treated  by  us  freely 
and  fearlessly,  it  is  true,  as  became  the  nature  of  the  oc- 
casion, but,  nevertheless,  frankly,  and  fairly  and  respect- 
fully, as  was  due  to  their  talents  and  their  virtues.  We 
spoke  of  no  "  volunteers  " — we  assailed  no  motives — we 
impeached  no  principles,  though  we  liberally  discussed 
the  various  opinions  expressed,  and  the  means  and  oppor- 
tunities from  which  they  were  deduced. 

If  by  "  speaking  plainly"  the  counsel  mean  contumeli- 
ously,  his  remarks  have  been  as  plain  as  a  sunbeam,  and 
almost  as  bright ;  but  if,  upon  the  contrary,  he  would  be 
understood  to  signify,  a  just  adaptation  of  thoughts  and 
language,  to  the  immediate  subject  of  discussion  ;  he  will 
excuse  my  saying,  he  has  been  guilty  of  a  vast  and  un- 
pardonable mistake — a  mistake  in  first  substituting  him- 
self for  Dr.  Togno,  and  afterwards  applying  to  that 
highly  respectable  gentleman,  those  observations  and  re- 


158          FORENSIC    SPEECHES   OF    DAVID   PAUL    BROWN. 

bukes,  which,  as  counsel,  he  himself  so  richly  merited — 
though  so  sparingly  received.  By  what  principle  he  has 
been  influenced — by  what  master  spirits  he  has  been 
prompted  or  directed,  we  shall  not  deign  to  inquire,  but 
proceed  to  repel  the  attack,  and,  in  doing  so,  the  learned 
gentleman  must  not  complain  if  we  resort  to  weapons 
similar  to  those  with  which  it  has  been  made — "  'tis  fit 
the  artificers  of  death  should  die." 

I  should  be  a  foe  to  fealty  and  to  friendship,  could  I 
dispassionately  stand  by,  and  complacently  behold  the 
counsel  glutting  his  vengeance  upon  an  unassuming  and 
unoffending  individual,  who,  actuated  alone  by  justice 
and  philanthropy,  has  imparted  the  valuable  aid  of  his 
testimony  to  the  present  defence. 

And  is  it  not  most  monstrous  and  unheard  of,  that  a 
learned  gentleman — himself  a  volunteer  in  pursuit  of  blood 
— a  soldier  who  has  eagerly  enlisted  in  this  magnanimous 
war,  without  even  the  temptation  or  inducement  afforded 
by  the  bounty,  should  for  the  purpose  of  proving  his  loyalty 
and  submission  to  the  power  he  serves, — not  satisfied 
with  wreaking  his  wrath  upon  the  devoted  head  of  the 
defendant, — venture  even  to  grapple  with  the  integrity 
of  a  highly  honorable  man,  for  no  other  reason,  than 
because,  forsooth,  his  evidence  presents  an  impenetrable 
and  insurmountable  barrier,  between  the  commonwealth 
and  her  intended  victim. 

Dr.  Togno's  testimony,  I  cite  the  counsel's  very  lan- 
guage, is  "  obtrusively  adverse"  and  therefore,  the  witness, 
we  are  told,  shall  have  the  melancholy  consolation  "  of 
dying  on  his  own  sword."  Heaven  save  the  mark  ?  The 
doctor  could  not  die  upon  a  more  unsullied  sword,  or  in  a 
nobler  cause.  A  sword,  allow  me  to  observe,  that  cannot 
even  be  dignified  by  the  illustrious  hand  of  the  distin- 
guished advocate,  by  whom  it  is  proposed  to  be  wielded. 
But  let  not  the  counsel  talk  of  slaying,  until  he  has,  at 
least,  first  established  his  lofty  claims  to  valor,  upon  the 
ruins  of  this  wretched,  persecuted,  and  oppressed  family. 


CHAPMAN  CASE.  159 

Let  him  first,  I  say,  wage  a  successful  and  exterminating 
war,  against  helpless  women  and  unprotected  children. 
"  Discretion  is  the  better  part  of  valor."  If  he  will  play 
the  falcon,  he  must  not  only  fly  a  "higher  pitch,"  but  make 
his  first  experiment  upon  harmless  doves,  ere  either  his 
beak  or  his  talons  will  prove  subjects  of  alarm  to  the 
towering  and  majestic  eagle.  Enough  of  this — I  almost 
owe  Dr.  Togno  an  apology  for  having  breathed  a  word  in 
his  support — he  is  above  all  assault — he  requires  no  de- 
fence, but  clothed  in  the  protection  of  a  spotless  and 
irreproachable  character — stands  self-dependent  and  self- 
sufficient. 

"  The  gentlemen  examined  for  the  prosecution,  do  not 
remember  to  have  seen  Dr.  Togno  at  Dr.  Mitchell's  labor- 
atory." "Wonderful  oversight  1  and,  therefore,  I  suppose 
Dr.  Togno,  who  swears  he  was  present  upon  that  occasion, 
partially  describes  what  took  place,  and  particularly  men- 
tions the  individuals  engaged  in  the  experiments — must 
have  drawn  all  these  matters  from  fancy  and  not  from 
fact.  Can  any  man  doubt  his  presence — if  not,  the  cir- 
cumstance of  its  not  being  remembered  by  our  other 
scientific  friends,  may  show  their  own  want  of  memory, 
but  cannot  impair  the  recollections  of  his.  Ah  !  but  says 
Mr.  Reed,  he  would  give  us  to  disbelieve  that  the 
stomach  was  the  seat  of  any  inflammation  at  all,  after  a 
very  hasty  and  unsatisfactory  examination.  I  put  him 
in  opposition  to  Dr.  Coates — intelligent  and  respectable 
as  he  is,  who  decided  that  the  internal  surface  of  the 
stomach  was  highly  inflamed,  without  ever  opening  it, 
upon  a  very  slight  examination  of  the  peritoneal  coat, 
and  I  am  content  to  abide  by  your  decision  between 
them.  I  put  it  in  opposition  to  the  statement  of  my 
friend,  Dr.  Hopkinson,  who  was  satisfied  that  the 
stomach  contained  the  cause  of  the  untimely  death  of 
the  deceased — without  ever  having  seen  its  contents, 
or  examined  other  most  important  parts  of  the  body. 
T  put  it  in  opposition,  even  to  the  highly  and  deservedly 


160          FORENSIC   SPEECHES  OF  DAVID   PAUL   BROWN. 

lauded  testimony  of  Dr.  Mitchell,  who,  from  a  skilful 
and  miraculous  combination  Df  a  variety  of  uncertainties 
and  fallacies,  rendered  everything  so  perfectly  evident, 
"  that  it  would  glimmer  through  a  blind  man's  eye."  I 
put  it,  in  short,  in  opposition  to  everything  to  be  derived 
from  this  portion  of  the  case,  with  the  exception,  let  it  be 
always  understood,  of  Mr.  Clemson's  refined  and  delicate 
sense  of  smelling,  and  his  unrivalled — his  transcendent 
powers  of  discrimination,  between  arsenic  and  mercury  ! 

Passing  from  the  chemical  to  the  anatomical  part  of 
the  examination,  we  are  by  no  means  relieved  from  the 
doubts  and  difficulties  by  which  the  understanding  is 
clouded  and  embarrassed.  Upon  visiting  the  grave  yard, 
what  are  the  circumstances  attending  upon  the  exhuma- 
tion ?  The  body,  which  was  disinterred  about  three 
months  after  its  interment,  was  found,  we  are  told,  in  a 
state  of  perfect  and  unusual  preservation.  Unusual — 
how  do  we  ascertain  that  ?  Not  a  physician  who  has 
been  examined  has  ever  seen  a  body  after  an  interment 
for  three  days,  much  less  three  months  ;  they  have,  there- 
fore, no  experience  upon  the  subject  in  relation  to  which 
,  they  speak.  This  preservation  is  imputed  to  the  effect  of 
arsenic.  Miraculous ! — arsenic  enough  to  preserve  this 
body,  and  yet  not  enough  to  be  detected  subsequently  by 
all  the  accomplished  and  skilful  chemists  employed !  It 
is  true,  as  they  say,  that  arsenic  is  considered  an  antisep- 
tic, and  is  thus  used  in  the  preparation  and  preservation 
of  birds  after  death,  but  the  quantity  thus  required  is 
very  considerable, — small  as  the  bodies  may  be, — and 
can  easily  be  detected.  It  is  no  answer,  therefore,  to  the 
argument  already  addressed  to  you  in  relation  to  the 
failure  of  the  chemical  experiments. 

Further — the  best  opinions  of  the  ablest  writers,  incul- 
cate the  belief,  that  only  that  portion  of  the  body  which 
is  more  immediately  affected  by  the  arsenic  is  liable  to  be 
preserved.  Yet,  in  this  case,  the  whole  of  the  human 
frame  was  equally  preserved.  It  would  be  useless  to 


CHAPMAN   CASE.  161 

refer  to  authorities  for  this  principle,  as  it  will  hardly  be 
denied. 

It  is  unnecessary,  however,  to  dwell  longer  upon  these 
theories,  when  the  facts  connected  with  the  interment 
sufficiently  explain  the  phenomenon.  The  pastor  of  the 
church  has  told  you,  that  having  found  fault  with  his 
sexton  for  digging  his  graves  too  shallow,  the  sexton 
afterwards  fell  into  the  opposite  extreme,  and  dug  them 
of  an  extraordinary  depth.  In  addition  to  this,  the  soil 
was  of  a  dry,  sandy  character,  covered  with  a  stratum  of 
clay,  which  protected  it  from  moisture,  which  protection 
was  increased  by  the  declivity  of  the  surface  of  the 
ground.  Now  Orfila,  in  his  treatise  upon  exhumation, 
and  even  the  scientific  witnesses  who  have  testified  in 
this  cause,  show  conclusively,  that  this  cause  is  entirely 
sufficient  to  account  for  that  preservation,  which,  by 
some,  has  been  attributed  to  the  influence  of  the  poison. 

The  next  ground  of  reliance  on  the  part  of  the  prosecu- 
tion, is  the  anatomical  investigation.  It  seems  that  the 
body  was  opened,  and  the  stomach  removed,  under  the  im- 
pression that  "  the  cause  of  death,"  in  the  language  of  Dr. 
Hopkinson, — whatever  it  may  have  been, — "  was  contained 
therein."  The  lower  intestines  were  found  perfectly  empty, 
and  appeared  "  as  if  they  had  been  hung  up  to  dry." 

The  rectum  was  not  examined — nor  the  brain — nor  the 
heart  and  larger  vessels — nor  the  liver.  I  will  not  pause 
to  show  you  how  essential  it  was,  that  the  examination  of 
all  should  have  taken  place  in  a  case  of  such  vital  im- 
portance. I  will  not  dilate  upon  the  habits — conforma- 
tion, and  constitution  of  the  deceased,  and  the  probability 
or  possibility  of  death  from  natural  causes.  I  am  satis- 
fied to  take  the  examination  as  it  was — to  try  it  by 
itself — for  "  none  but  itself  can  be  its  parallel."  The 
stomach  was  removed — it  was  not  opened — and  yet  Dr. 
Coates,  one  of  the  physicians,  from  its  external  appear- 
ance, ventured  to  pronounce  upon  its  internal  state. 
He  saw  through  the  covering,-  the  peritoneal  and  muscu- 

11 


162  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

lar  coat,  and  undertakes  to  tell  us,  from  this  superficial 
view,  not  only  the  character  of  the  inflammation  of  the 
mucous  membrane,  or  lining  of  the  stomach,  but  also  to 
distinguish  between  congestion  and  inflammation.  I 
aver  this  to  be  utterly  impossible,  and  I  regret  exceed- 
ingljj  that  a  highly  respectable  man,  and  a  meritorious 
physician,  should  have  been  betrayed  by  the  excitement 
of  the  occasion,  into  such  unnatural  perspicacity.  I  have 
not  the  least  question  of  the  entire  honesty  of  the 
doctor's  intention ;  I  can  have  none — but  he  must  pardon 
me  when  I  say,  his  opportunities  of  observation  were 
entirely  too  limited  to  be  depended  upon. 

"While  on  this  subject,  what  says  Orfila?  "The  exist- 
ence or  non-existence  of  cadavaraque  lesions — the  extent 
and  seat  of  disease,  are  never  sufficient  to  enable  us  to 
pronounce  whether  there  has  or  has  not  been  poison  ;  and 
they  can  only  serve  to  corroborate  the  conclusions  derived 
from  a  chemical  analysis  of  the  suspected  matter."* 

Nor  is  the  testimony  of  Dr.  Hopkinson  a  more  legiti- 
mate source  of  reliance,  skilful  and  accomplished  as  he  is 
acknowledged  to  be,  in  the  science  which  he  professes. 
He  ingeniously  concedes  the  fact,  that  his  anatomical  in- 
quiries were  very  imperfect ;  that  it  was  the  first  occasion 
of  this  nature  in  which  he  had  been  employed ;  and  that 
supposing  that  the  stomach  contained  the  deleterious  or 
poisonous  substance,  he  considered  it  to  be  useless  to  pro- 
ceed any  further.  I  wish  it  to  be  understood,  once  for 
all,  that  I  find  no  fault  with  these  gentlemen,  but  1  pro- 
test 'altogether  against  the  attempt  to  infer  poison  from 
what  did  not  appear,  when  they  had  it  in  their  power  by 
sufficient  care  and  attention,  to  have  decided  the  question 
one  way  or  another :  and  having  omitted  to  do  so,  we  are 
entitled  to  argue  that  a  further  examination,  would  have 
removed,  rather  than  confirmed,  their  previous  suspicions. 

In  regard  to  the  "herring"  or  fishy  smell,  issuing  from 

*  Orfila  (last  edition),  Tome,  i,  page  370. 


CHAPMAN   CASE.  163 

the  body  when  opened,  it  is  hardly  necessary  to  say  any- 
thing. Without  attempting  to  he  witty,  it  affords  at 
best,  but  a  scaly  reason  for  a  conviction.  Its  only  recom- 
mendation to  attention,  is,  that  the  doctor  never  smelt 
anything  like  it  before.  I  presume  he  must  before  have 
opened  stomachs  containing  arsenic ;  and  if  so,  not  hav- 
ing met  with  a  similar  smell,  confirms  the  idea  that 
this  was  not  arsenic.  But  if  the  fact  were  otherwise,  his 
never  having  encountered  a  similar  effluvia,  assuredly 
does  not  show  that  this  smell  was  peculiar  to  arsenic. 
There  is  no  book  that  confirms  or  suggests  that  idea.  He 
never  before  opened  a  body  after  three  months'  interment, 
and  in  like  circumstances,  and  the  similarity  of  facts  fail- 
ing, the  reason  also  fails.  Dr.  Mitchell,  it  is  true,  having 
introduced  arsenic  into  a  dead  stomach,  after  some 
months  detected  a  similar  odor.  Yet  we  know  nothing 
of  the  state  of  that  stomach, — of  the  nature  of  the  disease 
which  produced  death, — of  its  cadavaraque  appearances  ; 
and  therefore  it  affords  us  no  scope  for  analogical  inquiry. 
But  an  answer  to  all  this,  is  derived  from  Dr.  Coates,  who 
tells  us  that  the  smell  did  not  seem  to  him  to  resemble 
that  of  herring,  but  rather  that  of  tanner's  oil.  Now  I 
leave  you  to  decide  between  the  noses  of  these  doctors, 
while  I  proceed  to  consider  the  other  portions  of  this  case. 
Inverting  the  natural  course  of  things,  and  pursuing 
that  adopted  by  our  antagonists,  from  a  desire  of  grap- 
pling with  them  on  their  own  ground,  we  come  next  to 
the  chamber  of  disease  and  death  ;  and  let  us  approach  it 
with  a  gravity  that  becomes  the  scene.  On  the  night  of 
the  17th  of  June  the  deceased  was  first  attacked.  He 
continued  ill  until  the  morning  of  the  twenty-third,  at 
about  two  o'clock,  when  he  expired.  During  his  illness, 
he  made  violent  attempts  at  vomiting,  which  but  partially 
succeeded.  He  complained  of  burning  pains  in  his 
stomach.  Towards  the  close  of  his  career,  he  became 
delirious,  and  in  his  last  hours  his  pulse  was  feeble  and 
fluttering  ;  his  mouth  was  dry,  and  his  skin  clammy  and 


164  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

collapsed.  After  his  death,  a  small  quantity  of  what  was 
called  "  bloody  serum  "  by  Dr.  Phillips,  was  found  on  the 
sheets,  and  supposed  to  have  been  involuntarily  discharged 
per  anum.  Some  time  after  his  death,  say  three  or  four 
hours,  an  unusual  rigidity  of  the  body  was  observed  by 
Mr.  Boutcher,  who,  upon  that  occasion,  performed  the 
last  sad  office  of  an  undertaker.  These  are  the  dark  de- 
notements, which,  together  with  the  other  circumstances, 
must  supply  the  evidence  of  poisou.  By  whom  adminis- 
tered, is  another  question.  If  there  were  no  poison,  there 
was  no  poisoning,  which  goes  to  the  whole  charge. 

Dr.  Mitchell,  for  whom  as  a  physician,  a  friend,  and  a 
man,  I  have  the  highest  regard,  informs  us  that  the 
chemical  tests  were  equivocal ;  that  the  anatomical  ex- 
aminations were  imperfect,  and  not  to  be  relied  upon; 
that  the  preservation  of  the  body  was  fallacious ;  that  the 
symptoms  themselves  were  not  peculiar;  but,  neverthe- 
less, that  from  the  combination  of  all,  he  had  arrived  at 
the  conclusion  "that  William  Chapman  died  from  poison." 
This  is  is  a  home-thrust,  and  we  must  parry  it  or  die.  I 
deny  then,  in  the  outset,  that  by  the  combination  of  other 
things,  each  in  itself  imperfect,  perfect  proof  can  be  ar- 
rived at.  I  deny  that  a  chaplet  of  fallibilities,  however 
artfully  strung  together,  can  form  an  infallibility.  On 
the  contrary,  the  concatenation  renders  imperfection  less 
perfect,  and  fallibility  more  fallible.  "  The  mind,"  says 
Lord  Bacon,  "  has  this  property,  that  it  readily  supposes 
a  greater  order  and  conformity  in  things  than  it  finds. 
Although  many  things  in  nature  are  singular  and  ex- 
tremely dissimilar,  yet  the  mind  is  still  imagining  parallel 
correspondences,  and  relations  betwixt  them,  which  have 
no  actual  existence." 

But  without  being  an  admirer,  much  less  a  disciple  of 
the  Bobadil  school,  let  me  encounter  some  of  these 
theories  in  detail.  The  symptoms,  for  instance — the 
nucleus  of  the  whole  hypothesis.  They  are  symptoms 
that  belong  to  cholera  morbus,  to  violent  indigestion, 


CHAPMAN   CASE.  165 

some  of  them  to  dysentery  ;  none  of  them  peculiarly  to 
poison.  But,  says  the  learned  counsel,  as  any  and  all  of 
them  may  be  found  in  arsenical  cases,  you  have  therefore 
the  right  to  presume,  from  their  existence  here,  that  this 
was  a  case  of  death  by  arsenic.  Not  so,  my  learned 
friend :  if  they  are  also  to  be  found  in  natural  diseases, 
you  are  bound  to  presume,  influenced  by  the  benign  prin- 
ciples of  the  law,  that  they  were  the  effects  of  natural 
causes.  Show  us,  sajrs  the  counsel,  triumphantly,  any 
one  of  these  symptoms,  which  is  not  to  be  found  in  cases 
of  poison.  I  fearlessly  answer,  we  cannot ;  for  the  phases 
of  arsenic  are  as  various  as  the  constitutions  and  tempers 
of  men.  They  put  on  the  semblance  of  every  disease, 
and  chameleon-like,  change  while  you  describe  them. 
But  let  them  show  ws,  if  they  can,  any  symptom  not  to 
be  found  in  other  cases  of  disease,  and  they  will  have 
established  an  important  point,  in  the  detection  of  arseni- 
cal poison.  Nay,  more — not  relying  merely  upon  their 
inability  to  do  this,  I  will  satisfy  you,  that  the  main  and 
characteristic  indications  or  symptoms  of  arsenic,  even 
according  to  Dr.  Mitchell  himself,  are  wanting  in  this 
case. 

Dr.  Mitchell  has  given  us  some  of  the  grounds,  from 
which  he  deduces  the  notion  of  poison.  The  involuntary 
discharge  of  bloody  serum  ;  the  absence  of  delirium  ;  the 
rigidity  of  the  corpse ;  and  last,  but  greatest,  the  diseased 
rectum.  When,  wonderful  to  relate,  there  is  no  certainty 
of  any  involuntary  emission;  and  there  is  a  difference 
between  Mr.  Boutcher  and  Mr.  Phillips,  as  to  the  bloody 
discharge.  And  even  had  it  taken  place,  there  are  vari- 
ous complaints  which  would  produce  it.  As  to  the  ab- 
sence of  delirium,  not  a  witness  has  mentioned  it ;  but 
Dr.  Knight  and  Dr.  Phillips  both  state,  that  he  was  de- 
lirious from  time  to  time,  for  twenty-four  hours  before 
his  death.  If,  therefore,  absence  of  delirium  be  an  indi- 
cation of  arsenic,  the  presence  of  delirium  is  evidence 
against  it.  The  rigidity  of  the  limbs — if  admitted  by 


166  FORENSIC    SPEECHES    OF    DAVID    PAUL   BROWN. 

us — is  easily  accounted  for,  the  body  having  been  per- 
mitted to  remain  several  hours  in  the  bleak  air  of  the 
morning,  before  any  ,  attempts  at  laying  it  out  were 
made.  But  it  is  still  less  to  be  regarded,  when  it  is 
understood,  that  Mr.  Boutcher,  so  far  from  being,  as  the 
doctor  supposed,  an  experienced  undertaker,  was  but 
a  neighboring  individual,  accidentally  performing  these 
rites  ;  who,  perhaps,  had  never  seen  a  dozen  dead  bodies 
in  his  life,  and  who  tells  you  himself  that  although  he 
had  sometimes  done  these  things,  he  had  ceased  to  do 
them  for  several  years  before.  He  perhaps  had  never 
performed  the  service  in  similar  circumstances,  and  his 
vague  impressions  in  respect  to  the  stiffness  of  the  limbs, 
are  too  flimsy  and  indefinite  to  be  entitled  to  much  re- 
spect. 

As  I  have  said,  the  last  and  greatest  argument  for 
poison,  is  the  diseased  rectum.  This  is  establishing  a 
disputed  fact,  from  an  inference;  when  the  fact  might 
itself  have  been  ascertained,  instead  of  drawing  an  in- 
ference from  facts.  Nay,  more — and  worse  than  that : 
an  inference  of  poison  is  derived  from  an  inference  of  a 
diseased  rectum.  Not  a  witness  has  proved  it.  Not  a 
witness  who  was  present,  has  mentioned  it.  No  com- 
plaint was  ever  uttered  by  the  deceased  about  it,  though 
the  circumstances  attending  his  illness,  as  particularly 
described  by  Dr.  Knight,  were  obviously  such  as  to  in- 
duce complaint,  had  this  imaginary  cause  actually  ex- 
isted. So  that  you  perceive  the  process,  by  which  these 
learned  Thebans  arrive  at  the  conclusion  of  poison,  is  by 
first  stating  the  general  symptoms  of  poison ;  and  sec- 
ondly, imagining  correspondent  symptoms  in  the  de- 
ceased, some  of  which  never  appeared ;  and  the  very 
opposites  of  others,  having  been  abundantly  established. 
A  single  remark,  and  I  bid  farewell — a  long  farewell  to 
physic.  I  have  been  surprised  and  astonished  at  the  silly 
sequel  to  that  story,  whose  preface  promised  so  much 
wisdom ;  and  I  think  I  utter  your  sentiments,  when  I 


CHAPMAN   CASE.  167 

say,  that  however  skilful  our  scientific  friends  may  be 
in  preserving  life, — and  I  know  no  men  in  whom  I  would 
more  readily  confide, — with  such  evidence  as  this,  they 
are  utterly  incapable  of  destroying  it.  I  respect  them  all 
— I  honor  them  all ;  and  to  Dr  Mitchell  particularly,  I 
have  confided,  and  would  still  confide,  the  health  of  those 
much  dearer  to  me  than  myself.  Bu't  experience  has 
taught  me  this  salutary  lesson  of  human  nature,  that 
whatever  may  be  the  gradations  in  refinement,  whatever 
may  be  the  immeasurable  difference  in  intellect,  whatever 
may  be  the  advantages  of  science,  still,  in  the  essential 
constituents  of  the  human  character,  men  are  at  last  but 
men  ;  alike  subject  to  passion,  to  prejudice,  to  error  ;  and 
perhaps  more  strongly  confirmed  and  sustained  in  all,  by 
that  very  refinement  of  reason,  and  expansion  of  thought, 
for  which,  in  general,  they  are  so  justly  celebrated  and 
admired. 

Pursuing  the  course  marked  out  by  our  learned  friends, 
though  by  no  means  that  which  I  had  proposed  myself  to 
adopt,  I  now  pass  from  the  pathological,  anatomical,  and 
chemical  inquiries,  to  what  is  termed  by  them,  the  cir- 
cumstantial proofs  in  this  case.  Circumstantial  evidence 
it  should  rather  be  called,  as  the  term  proof  implies  a 
higher  claim  to  regard  than  belongs  to  this  species  of 
testimony,  even  in  its  best  estate.  I  will  consider  it  in 
the  order,  perhaps  I  should  say  disorder,  in  which  it  has 
been  presented. 

As  to  Mary  Ann  Palethorp,  the  little  girl  of  twelve 
years  of  age,  who  served  as  a  modest  and  ingenious  pio- 
neer, for  the  introduction  of  bolder  and  more  reckless 
spirits,  scarcely  anything  need  be  said.  She  is  a  child — 
an  artless  and  an  interesting  child — and  far,  far  be  it 
from  me,  to  impugn  or  impeach  her  in  the  slightest  par- 
ticular. 1  believe  what  she  has  said  to  be  as  sacred  as 
though  an  angel  spoke.  But  were  it  otherwise,  my  flight 
is  winged  above  the  heads  of  children,  whatever  may  be 
their  imperfections  or  inconsistencies,  and  has  for  its  ob- 


168  FORENSIC    SPEECHES   OP   DAVID   PAUL   BROWN. 

ject  and  its  prey,  those  who  by  the  maturity  of  their 
crimes,  are  no  longer  protected  from  impunity. 

First,  in  the  first  rank  of  those,  stands  the  redoubtable 
Ellen  Shaw — dux  foemina  facti — an  Amazonian  Queen — a 
modern  Penthesilea ;  sustained  on  the  right  by  the  peer- 
less Fanning,  on  the  left  by  the  blushless  Bantom,  and 
leading  on  a  host  of  other  worthies,  in  this  charitable 
crusade  against  a  woman — a  mother — and  a  benefactor. 
It  has  been  the  melancholy  fate  of  the  defendant,  to 
nurse  vipers  in  her  bosom ;  to  warm  them  into  life,  and 
to  be  the  victim  of  their  venom.  Her  verj7  charities  are 
converted  into  implements  of  assault.  The  abandoned 
profligate,  Mina,  the  great  exemplar  of  this  wretched 
crew,  after  having  been  discarded  with  revilings  and  re- 
proaches from  every  other  asylum,  presents  himself  at  the 
door  of  the  defendant  about  the  middle  of  May,  in  the 
evening, — a  beggar  and  an  outcast.  He  solicits  alms — 
he  craves  a  night's  lodging.  Under  the  twofold  influence 
of  pity,  and  that  duty  which  is  enjoined  by  divine  au- 
thority, her  house  and  her  heart  are  opened  to  him  ;  and 
she  contemplates  with  the  anxious  and  melting  eye  of  a 
mother,  the  friendless  condition  of  her  own  children,  in 
beholding  that  of  the  wanderer.  In  the  language  of  di- 
vine inspiration,  as  impressively  quoted  by  my  colleague, 
"  he  was  an  hungered,  and  she  gave  him  meat ;  he  was 
thirsty,  and  she  gave  him  drink ;  he  was  a  stranger,  and 
she  took  him  in  ;  naked,  and  she  clothed  him ;  sick,  and 
she  ministered  unto  him." 

But,  returning  from  this  episode,  to  the  testimony  of 
Ellen  Shaw,  we  find  a  blister  on  the  very  forehead — an 
odious  blot  on  the  very  title  page  of  her  evidence,  yie 
informs  you  that  she  was  in  the  yard  when  Mina  first  ar- 
rived ;  that  "  the  dogs  barked  at  him  as  he  passed  by 
them ;"  that  he  knocked  at  the  kitchen  door,  and  she  told 
him  that  he  had  better  apply  at  the  hall  door,  which  he 
accordingly  did.  That  Mr.  and  Mrs.  Chapman  came  out, 
and  that  the  former  observed  to  him  in  answer  to  his 


CHAPMAN  CASE.  169 

inquiries,  that  there  was  a  tavern  a  short  distance  below ; 
that  Mina  replied  he  had  already  been  refused  assistance 
at  that  tavern,  and  that  Mrs.  Chapman  then  took  him 
into  the  room,  and  began  to  talk  to  him,  and  that  the 
door  being  shut,  the  witness  went  into  the  kitchen.  Now 
one-half  of  this  story  is  the  very  coinage  or  her  brain, 
for  Mary  Palethorp,  another  witness  for  the  prosecu- 
tion, distinctly  says — without  speaking  of  the  testimony 
of  the  little  Lucretia,  who  is  worth  a  host  of  Ellen 
Shaws — that  Mr.  and  Mrs.  Chapman  were  tranquilly  sit- 
ting in  the  parlor  ;  that  Mr.  Foreman  went  to  the  door ; 
that  he  returned,  and  told  Mr.  Chapman  there  was  a 
stranger  at  the  door ;  that  Mr.  Chapman  requested  Mr. 
Foreman  to  show  him  in  ;  that  he  was  then  introduced 
into  the  parlor,  and  there  the  conversation  just  referred 
to,  took  place. 

Thus,  you  perceive,  Ellen  Shaw  not  only  states  the 
fact  of  Mr.  and  Mrs.  Chapman's  presence  at  the  door, 
which  was  not  true  ;  but  relates  a  conversation  as  having 
taken  place  at  the  door,  which  actually  took  place  in  the 
parlor,  and  with  closed  doors,  while  she,  Ellen,  was  in  the 
kitchen.  To  place  the  mildest  interpretation  upon  this 
story,  it  is  either  imaginary,  or  she  has  totally  con- 
founded that  which  she  knew,  with  that  which  she  de- 
rived from  other  and  illegitimate  sources.  The  incon- 
sistency, however,  does  not  rest  here.  She  states  to  you, 
that  Mina,  upon  his  arrival,  had  on  a  dark,  or  black  suit 
of  clothes,  and  a  long  coat ;  while  Mary  Palethorp  says 
he  wore  a  light  roundabout.  This,  though  I  admit  it  is 
unimportant  in  some  of  its  relations,  still  shows  how  little 
dependence  is  to  be  placed  upon  the  accuracy  of  the  wit- 
nesses. 

But  Ellen  proceeds  yet  further,  and  says,  preserving 
the  same  spirit  which  she  manifested  in  the  outset,  that 
Mrs.  Chapman,  a  day  or  two  after  his  arrival,  accompa- 
nied Mina  to  Count  Bonaparte's ;  they  went  in  the  car- 
riage in  the  morning,  and  returned  in  the  evening.  She 


170  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

omits  altogether  to  mention  that  Mr.  Ash  was  their  com- 
panion in  the  journey,  and  that  it  was  with  the  entire 
approbation  of  Mr.  Chapman.  That  this  was  an  inten- 
tional omission,  can  hardly  be  denied,  when  we  remember 
how  remarkably  tenacious  her  memory  appears  to  be,  in 
regard  to  the  minutest  circumstance  that  is  calculated  to 
operate  in  favor  of  the  prosecution 

"  It  was  during  this  ride,"  says  the  learned  counsel, 
"  illicit  love  lighted  up  his  unholy  fires  in  the  bosom  of 
the  defendant."  How  delightfully — or  frightfully  roman- 
tic! The  first  attempt,  evidently,  on  the  part  of  the  pros- 
ecution, was  to  show  the  acquaintance  between  the  priso- 
ners, anterior  to  the  arrival  of  Mina  at  Andalusia ;  and, 
therefore,  was  it  that  Mary  Palethorp  was  asked :  "  who 
appeared  best  to  understand  him  when  he  arrived  ?" — to 
which  she  answered  :  "  Mrs.  Chapman."  But  being  driven 
from  this  position  by  their  own  witnesses,  the  next  effort 
is,  as  I  have  shown  you,  to  infer  a  criminal  alliance  be- 
tween them,  from  the  period  of  visiting  Bonaparte's; 
which  was  but  two  days  after  the  reception  of  Mina,  at 
Mrs.  Chapman's  hospitable  abode.  This  is  a  fancy,  un- 
rivalled in  all  the  legendary  lore  of  outrageous  fiction. 
"  The  Libertines,"  "  the  Monk,"  "  the  Black  Forest,"  "  the 
Mysteries  of  Udolpho,"  and  all  the  other  mysteries  that  the 
world  ever  heard  of,  saw,  or  wondered  at,  never  presented 
to  the  human  mind  so  shocking  a  monstrosity  as  this.  A 
beggar — "  a  cut-purse  of  the  empire  ;"  a  vagabond,  who  in 
personal  appearance  was  not  the  "  twentieth  part  the  tithe 
of  her  precedent  lord  ;"  a  wretched  tatterdemalion,  fit  only 
for  a  scarecrow,  wins  at  first  sight  the  defendant  from 
her  loyalty — from  her  husband,  with  whom  she  had  lived 
in  harmony  for  thirteen  years — from  her  children,  upon 
whom  she  doated — nay,  even  from  herself!  Where, 
except  in  the  prolific  fancy  of  the  ingenious  counsel,  do 
you  derive  support  for  this  notion  ?  Even  Ellen  Shaw 
tells  you,  that  upon  her  return  she  spoke  of  him  as  a 
son— as  a  brother,to  her  children  ;  and  I  ask  you  whether 


CHAPMAN   CASE.  171 

it  is  possible  for  illicit  love  to  mingle  his  lurid  fires  with 
the  hallowed  flame  of  maternal  tenderness  and  affection. 

The  next  part  of  Ellen  Shaw's  testimony,  is  that  which 
relates  to  the  conversation  between  her  and  Mr.  Chap- 
man, during  the  absence  of  Mrs.  Chapman  with  Mina,  at 
the  city  of  Philadelphia,  for  two  or  three  days.  Now, 
whether  any  such  conversation  took  place  with  her,  is 
exceedingly  doubtful,  as  Fanning  says  she  was  not  pres- 
ent ;  but  take  it  as  it  is.  This  female  lago  tells  you,  that' 
upon  the  husband's  complaining  of  his  wife's  absence,  she 
hinted  to  him,  that  it  was  probable  they  had  gone  to 
Mexico,  as  she  had  heard  them  speak  of  such  intention. 
Yet  she  never  heard  them,  and  admits  she  never  heard 
them  ;  and  thereby  she  convicts  herself  in  the  first  place,  of 
falsehood ;  and  secondly,  she  shows — from  what  cause  we 
need  not  stop  to  inquire — that  her  feelings  towards  Mrs.' 
Chapman  were  of  the  most  hostile  and  malignant  char- 
acter. 

Without  pausing  to  notice  her  various  anachronisms — 
the  allegations  of  her  desire,  and  that  of  her  children, 
that  she  should  leave  the  place — her  confounding  spiritual 
and  temporal  songs  together — her  pious  ejaculations  on 
the  subject  of  family  prayer — her  abominable  perversion 
of  the  true  state  of  the  facts  in  respect  to  Mr.  Chapman's 
having  been  compelled,  by  his  wife,  to  make  the  beds — 
all  of  which  matters  have  been  brushed  away  from  me, 
by  the  friendly  hand  of  my  colleague — I  say,  without 
making  these  separate  subjects  of  remark ;  let  me  merely 
ask,  while  thus  glancing  at  them  in  rapid  review,  whether 
there  is  a  man  on  that  jury  who  would  be  satisfied  to 
abide  by  that  test,  which  worthless,  discontented,  and 
discarded  servants,  might  be  disposed  to  apply,  to  the 
least  questionable,  to  the  most  laudable  of  all  his  domes- 
tic arrangements.  The  language — the  manner — the  mat- 
ter— when  tortured  in  her  intellectual  or  moral  crucible, 
lose  all  their  value — their  gold  is  turned  to  dross. 

Again,  in  speaking  of  her  visit  to  Mr.  Wright's,  a  visit 


172  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

made  for  her  own  personal  gratification,  a  few  days  be- 
fore she  left  the  house  at  Andalusia,  she  mentions  that 
Mina,  "  pretending  to  be  sick,  threw  himself  back  upon  the 
lap  of  Mrs.  Chapman,  who  supported  him  in  her  arms ;" 
and  yet  she  omits  to  mention  altogether,  that  Mina  also 
rested  in  her  lap,  though  it  was  obvious  to  all,  that  she 
was  a  perfect  antidote  to  the  tender  passions.  Nay — this 
is  not  all :  upon  arriving  at  Mr.  Wright's,  she  informs 
you  that  Mina  and  Mrs.  C.  took  a  walk  in  the  woods,  for- 
getting altogether  the  fact  extracted  from  her  upon  the 
cross-examination,  that  they  also  invited  her  to  walk ; 
and  that  the  house  of  Mr.  Wright,  upon  their  arrival, 
was  in  such  a  state,  as  to  be  unfit  to  receive  them ;  and 
that,  therefore,  they  were  compelled  to  walk,  as  they  had 
no  opportunity  of  sitting.  If  you  choose  to  be  suspicious, 
why,  to  be  sure,  you  may  perceive  impropriety  in  this,  as 
you  may  in  any  other  step  in  life ;  but,  in  itself,  it  is  en- 
tirely harmless,  and  totally  consistent  with  the  most  im- 
maculate virtue. 

The  malevolence  of  this  witness  towards  the  prisoner, 
was  clearly  to  be  inferred,  from  her  promptness  in  answer- 
ing, whenever  her  answer  was  unfavorable  to  the  defend- 
ant ;  and  from  her  mental  reservation — her  suppression 
of  the  truth,  in  those  particulars  which  were  calculated 
to  explain  what  otherwise  might  exhibit  a  semblance  of 
guilt.  But  we  are  not  left  to  mere  inference  of  malevo- 
lence. You  have  it  in  distinct  proof — in  proof  from  Ellen 
Shaw  herself,  who,  if  she  can  establish  anything,  it  must 
be  her  own  unworthiness.  When  injudicious^  called  a 
second  time  by  the  prosecution,  we  took  the  liberty  of  ap- 
plying the  touch-stone  "  to  see  if  she  were  current  coin 
or  not."  She  was  asked  whether  she  had  had  no  differ- 
ence with  Mr.  and  Mrs.  C. ;  she  answers  none.  But  were 
you  not  dismissed  from  their  service  ?  "  Well,"  said  she 
in  reply,  "didn't  I  go? — and  they  got  an  old  drunken 
wretch  from  the  road  in  my  place,  but  she  did  not  stay 
long."  Can  you  have  any  doubt,  gentlemen,  after  this, 


CHAPMAN   CASE.  173 

that  her  malice,  thus  engendered,  has  for  the  last  twelve- 
mooth  been  confined  like  subterranean  fire  within  her 
bosom,  at  last  thus  to  burst  forth  and  spread  a  ruin 
around.  She  presents  before  you  the  shocking  anomaly 
of  a  human  volcano,  breathing  nothing  but  flames,  devas- 
tation, and  death. 

Let  us  turn  from  this  disgusting  picture  to  the  next 
•witness  presented  on  the  part  of  the  prosecution — Mrs. 
Esther  Bache.  Her  testimony  is  of  but  little  importance. 
She  relates  what  took  place  between  Mina  and  Mrs.  C., 
and  says  that  Mr.  C.  having  attempted  joking  with  him, 
he  gave  Chapman  a  very  ill  look.  It  is  somewhat  hard 
to  find  fault  with  this,  as  he  certainly  had  no  other  look 
to  give.  But,  says  the  witness,  Mrs.  C.  apologized,  and 
laughingly  said,  "  Mina  does  not  understand  a  word  Mr. 
Chapman  utters."  This,  to  be  sure,  was  wonderful,  and 
bears  its  own  comment  with  it.  I  only  ask  Mrs.  Bache 
what  she  would  have  done,  and  wherein  consisted  the 
supposed  impropriety  ? 

But  the  witness  says,  that  Mina  sat  on  the  right  hand 
of  Mrs.  Chapman  at  table.  Where  should  he  sit? — at 
the  head  ? — at  the  foot  ?  If  he  had  taken  either  of  those 
places,  it  would  have  been  downright  treason  !  Which 
side  Mrs.  Bache  sat,  we  have  not  learned,  but  considering 
she  never  sat  down  but  twice  at  the  table  with  Mina  ;  and 
never  was  in  the  house  with  Mrs.  Chapman  beyond  a  day ; 
and  then  in  the  capacity  of  a  seamstress ;  her  observations, 
critical  and  explanatory,  of  the  domestic  regulations  of  the 
family,  were  truly  remarkable  and  surprising.  Mrs. 
Bache  has  every  appearance  of  a  respectable  woman,  and 
no  doubt  is  so ;  but  she  is  one  of  those  ladies  with  whom 
Ellen  Shaw,  and  Ann  Bantom,  have  been  talking,  and 
what,  independently  of  their  communications,  she  would 
have  considered  as  every  day  trifles ;  when  connected  with, 
or  engrafted  upon  their  stock  of  knowledge,  produces  to 
her  mind  a  ripe  harvest  of  forbidden  fruit, 

"  Whose  mortal  taste,  brought  death  into  the  world, 
And  all  our  wo." 


17-i  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

Ann  Bantom,  who  modestly  takes  the  third  place  in 
this  melancholy  procession,  but  who  has  strong  claims  to 
be  first,  will  now  be  introduced  to  your  notice.  She,  I 
suppose,  has  been  brought  forward  to  give  some  color  to 
their  case.  Thus  it  is,  gentlemen  of  the  jury, "  black  spirits 
and  white"  are  conjured  and  raked  up,  from  the  vile  re- 
cesses of  the  kitchen  and  the  garret — and  arrayed  here 
before  you  upon  this  trial,  like  Milton's  devils — "  fierce  as 
ten  furies,  terrible  as  hell."  The  day  darkens  at  their  ap- 
proach, and  the  radiant  smile  that  beams  from  the  brow 
of  innocence,  fades  away  beneath  their  withering  and 
demoniac  charm. 

Ann  Bantom  is  the  pivot  upon  which  the  whole  case, 
exclusive  of  the  medical  branches  of  it,  must  rest.  The 
second  proposed  general  inquiry,  relies  entirely  upon  her 
for  its  solution,  at  the  same  time  that  her  testimony  mate- 
rially affects  the  first.  Thus  important,  I  fearlessly  plant 
the  standard  of  my  defence  upon  their  own  soil.  I  am 
content  to  encounter  them  with  their  own  arms,  and  sub- 
mit unmurmuringly  to  the  issue  of  the  conflict.  A  word 
or  two,  for  the  general  recommendation  of  Ann  Banjom 
to  our  regard.  She  was  employed  as  an  out-door  servant ; 
occasionally,  though  not  often,  had  attended  on  Mondays 
to  assist  in  washing;  and  without, for  aught  that  appears, 
any  other  connection  with  the  family.  Having  generally 
been  there  on  Mondays,  how  she  at  this  late  period,  iden- 
tifies the  precise  day  upon  which  the  events  which  she 
relates  took  place,  I  know  not,  and  I  care  not ;  but  I  will 
consider  them  as  they  have  been  communicated  ;  and  for 
that  purpose,  I  am  sure  you  will  accord  me  a  patient  and 
attentive  hearing. 

Ann  Bantom  says  she  was  at  Andalusia  the  Monday 
after  Mr.  C.  was  taken  sick ;  and  it  is  not  a  little  re- 
markable, having  no  kind  of  acquaintance  with  Mr.  Chap- 
man, that  she  should  have  gone  uninvited  into  his  cham- 
ber in  the  morning,  to  inquire  after  his  health — to  find  him 
better  ;  and  that  she  should  again  go  up  in  the  afternoon 


CHAPMAN   CASE.  175 

of  the  same  day,  to  make  similar  inquiries — and  to  find 
him  worse.  I  pronounce  this  remarkable  in  itself,  but  it 
is  rendered  more  so,  by  the  recollection  that  it  does  not 
appear  she  had  ever  spoken  to  him  before ;  and  that  on 
the  next  day  after  the  Monday  referred  to,  she  neglected 
altogether  paying  him  a  visit,  though  she  knew  he  was 
worse ;  and  at  last  was  urged  up  into  his  chamber  by  his 
wife,  for  the  purpose  of  being  convinced  how  important 
it  was,  in  the  helpless  state  of  the  family,  that  her  ser- 
vices should  not  be  withdrawn.  This  may  be  all  true, 
but  much  of  it  is  extraordinary  Those  two  visits  on  the 
morning  and  afternoon  of  Monday,  bear  strange  denote- 
ments. The  prosecution  required  that  somebody  should 
see  him  in  the  morning,  to  observe  that  he  was  better, 
and  then  see  him  in  the  afternoon,  to  find  that  he  was 
worse ;  while  in  the  interim  the  soup  is  to  be  given  to 
the  patient,  and  the  deduction  of  poison  is  complete.  All 
these  matters  are  derived  from  the  witness  whose  testi- 
mony we  are  now  considering.  Let  us  turn  particularly 
to  her  statement. — [Notes  of  her  testimony  here  read.~\ 

"  Mrs.  Chapman,"  says  the  witness,  "  boiled  the 
chicken  and  prepared  the  soup."  That  the  hand  of 
the  wife  should  minister  to  the  wants  of  the  husband 
in  the  hour  of  disease,  is  assuredly  no  subject  of  legiti- 
mate complaint : — yet  such  is  the  dilemma  of  Mrs.  Chap- 
man, if  she  gave  her  husband  nothing,  she  is  branded 
with  unparalleled  cruelty,  and  if  on  the  contrary,  she 
comply  with  the  express  directions  of  the  physician,  and 
prepare  his  food  or  diet,  it  is  only  for  the  purpose  of 
infusing  poison  into  it.  Had  she  for  a  moment  contem- 
plated so  horrible  a  deed,  might  not  the  soup  have  been 
as  well  prepared  by  any  other  hand  ?  The  introduction  of 
the  arsenic,  was  the  work  of  an  instant ;  and  it  is  alleged 
to  have  taken  place  some  time  after  the  soup  was  made. 
There  was  every  thing  to  deter  her,  if  actuated  by  the 
imputed  purpose,  from  unnecessarily  connecting  herself 
with  a  transaction,  from  which  such  direful  results  were 


176  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

to  spring.  It  was  not  usual,  we  are  told,  however,  for 
Mrs.  C.  to  attend  to  culinary  concerns.  It  may  not  have 
been,  but  this  renders  our  reasoning  the  stronger,  even  as 
applied  to  this  condition  of  facts 

One  small  circumstance,  however,  has  escaped  the 
memory  of  our  friends,  and  it  almost  escaped  that  of 
their  witness ;  which  is,  that  on  this  ver}'  Monday, 
Juliana,  the  cook,  had  been  taken  sick ;  and  Ann  Bantom 
being  engaged  out  of  doors,  nobody  remained  to  attend 
to  the  preparation  of  the  soup  but  Mrs.  Chapman.  Yet 
still,  perfectly  as  this  portion  of  the  case  is  explained  ;  if 
you  choose,  as  the  counsel  do,  to  take  it  for  granted  she 
is  guilty,  even  this  circumstance  makes  against  her.  But, 
if  you  are  to  decide  upon  the  testimony,  I  will  not  say 
it  is  irreconcilable  with  guilt,  but  I  do  say,  it  is  per- 
fectly reconcilable  and  consistent  with  entire  innocence. 

To  resume  the  course  of  the  evidence : — The  soup  hav- 
ing been  made  about  dinner  time,  after  putting  salt  in  it, 
it  was  taken  up  by  Mrs.  Chapman  into  the  parlor,  for  the 
purpose  of  seasoning.  I  cannot  understand  this  exactly, 
and  perhaps  it  is  not  necessary  that  I  should.  Ann  Ban- 
tom follows  Mrs.  C.  into  the  parlor,  where  she  finds 
Mina.  She  does  not  remember  what  she  went  up  for, 
but  having  fulfilled  her  purpose,  she  returns  again  into 
the  kitchen.  In  the  afternoon  of  the  day,  the  soup,  or 
what  remained  of  it,  was  brought  down  by  Mrs.  C.  and 
placed  upon  the  kitchen  table; and  the  chicken  was  sub- 
sequently taken  up,  and  afterwards  brought  down  almost 
entire,  if  not  quite,  and  also  placed  upon  the  same  table, 
where  they  both  were  permitted  to  remain,  until  thrown 
out  untouched,  by  this  faithful  and  economical  servant. 
After  this,  the  ducks  of  Mr.  Boutcher,  to  the  number  of 
twenty,  died  ;  and  the  argument  was  intended  to  be — 
nay,  was — that  the  poisoned  soup  produced  their  un- 
timely end.  Now  let  me  consider  this,  and  if  I  do  not 
totally  demolish  the  reliance  of  the  prosecution,  upon 
their  own  testimony,  I  will  never  open  my  lips  again  in  a 


CHAPMAN  CASE.  177 

court  of  justice;  but  ever  hereafter,  shroud  my  dimin- 
ished head  in  obscurity  and  oblivion.  This  soup,  say 
they,  was  poisoned  soup:  how  can  you  for  a  moment 
reconcile  with  that  idea, — or  rather  with  the  idea  of  Mrs. 
C.'s  knowledge  of  the  poison, — the  resistless  fact  of  the 
poisoned  chalice  having  been  permitted  to  remain  for 
nearly  half  a  day,  upon  the  table  in  the  kitchen,  in  the 
very  centre  of  her  children,  who  were  there  at  play ;  and 
subject  also  to  the  appetites  of  her  servants?  Do  you — 
can  you  suppose,  that  she  designed  the  destruction  of  her 
entire  household,  little  ones  and  all  ? — Nay — do  you  sup- 
pose that  she  designed  directly  to  contribute  to  her  own 
inevitable  detection  ?  Both  sympathy  and  selfishness 
alike  revolt  at  the  idea.  If  poison  had  been  infused 
into  the  soup  without  her  knowledge,  she  is  free  from 
crime ;  and  if  it  existed  at  all,  it  is  only  by  supposing  it 
to  be  without  her  knowledge,  that  you  can  account  for 
these  extraordinary  measures.  For  all  the  uses  of  this 
argument,  I  care  not  whether  Lino  purchased  two  ounces 
of  arsenic,  or  two  pounds,  a  day  or  two  preceding  Mr. 
C.'s  death.  It  may  make  against  himself,  but  not  against 
the  present  defendant,  for,  whether  the  deceased  died 
from  natural  causes,  or  from  his  hand,  is  alike  to  our 
defence — the  prisoner  being  unacquainted  with  the  cause ; 
and  that  she  was  a  stranger  to  the  cause,  if  contained 
in  the  suspected  soup,  is  perfectly  manifest  and  unques- 
tionable ;  and  if  the  cause  were  not  contained  in  the 
soup,  then  was  the  soup  made  and  salted — the  chickens 
died,  and  the  ducks  followed — all  to  no  possible  purpose ; 
and  we  have  been  entertained  here  for  a  half  a  day  in 
the  examination  of  kitchen  concerns,  to  be  told  in  conclu- 
sion, that  they  have  nothing  to  do  with  the  case.  Had 
she  borne  with  her  the  consciousness  of  guilt,  what  was 
to  prevent  her  disposing  of  the  soup  in  a  thousand  ways  ? 
— throwing  it  into  the  fire,  throwing  it  out  of  the  win- 
dow, emptying  it  herself  in  the  sewer,  where  no  human 
power  could  have  discovered  it  ? — Nothing.  Yet  say  the 

12 


178  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

gentlemen,  perceiving  the  force  of  this  argument,  "but  a 
portion  of  the  soup  that  was  taken  into  the  parlor,  was 
poisoned,  and  afterwards  carried  up  to  Mr.  Chapman ; 
ai\d  that  which  was  brought  down  into  the  kitchen,  had 
not  been  drugged."  This  is  ingenious ;  but  it  has  no 
evidence  to  stand  upon,  and  is  self-destroyed.  The  only 
soup  thrown  out,  was  the  soup  brought  down.  The  soup 
that  was  thrown  out,  is  that  to  which  the  death  of  the 
ducks  has  been  attributed  ;  and  if  that  did  not  contain 
poison,  how  was  the  death  of  the  unfortunate  ducks  pro- 
duced ?  They  talk  of  challenges ! — I  challenge  them  to 
reconcile  these  conflicting  hypotheses. 

Mr.  Hellings,  and  several  other  witnesses,  state,  that 
the  death  of  large  flocks  of  young  ducks,  is  not  unusual. 
That  fish  water,  lime  water,  and  various  other  matters, 
will  produce  that  result ;  and  it  deserves  to  be  remem- 
bered, that  Mr.  Chapman  having  been  recently  engaged 
in  building,  large  quantities  of  lime  were  scattered  over 
his  little  domain,  and  perhaps  that  circumstance  may 
reasonably  account,  for  the  timeless  fate  of  these  almost 
unfledged  trespassers. 

A  word  or  two  more,  ere  I  take  leave  of  the  ducks.  I 
am  not  fond  of  quackery,  which  must  account  to  you  for 
a  very  brief  obituary  notice  of  these  long  lamented 
ducks.  On  Monday  morning,  before  the  soup  was 
made,  three  of  Mr.  Boutcher's  chickens  foiled  on  their 
backs  and  died.  On  Tuesday  afternoon,  a  whole  day 
after  the  soup  had  been  thrown  into  the  aqueduct,  the 
unsuspecting  .ducklings  followed  their  example ;  so  that, 
you  perceive,  the  chickens  died  by  anticipation  and  the 
ducks  forsooth  by  retrospection.  They  were  all  decently 
buried,  no  doubt,  with  becoming  ceremonies ;  yet  we 
cannot  but  drop  a  passing  tear  of  pity  for  their  fate, 
when  we  are  told  that  their  rights  of  sepulture  have,  but 
yesterday,  been  barbarously  invaded ;  and  their  canonized 
bones  have  burst  their  cerements,  and  been  produced  as 
a  sort  of  memento  mori  in  this  open  court,  for  the  purpose 


CHAPMAN   CASE.  179 

of  corrupting  the  wholesome  and  heavenly  atmosphere  of 
justice.  I  can  wish  the  prosecution,  however,  no  worse 
fate,  and  they  deserve  no  better,  in  requittal  of  this  un- 
hallowed deed,  than  to  be  daily  haunted  at  the  festive 
and  convivial  board,  with  the  awful  apparition  of  a  brace 
of  fat  ducks.  So  shall  they  ever  remember  the  history 
of  this  day's  error,  and  be  taught  a  solemn  and  salutary 
lesson  of  becoming  reverence  for  the  departed. 

We  have  thus  far  contemplated  the  evidence  of  Ann 
Bantom  in  itself,  and  found  it  altogether  too  weak  to  sus- 
tain itself.  What  then  shall  become  of  it,  when  opposed 
to  the  resistless  current  from  other  quarters,  that  sets 
against,  and  overwhelms  it  ?  The  little  Lucretia,  with  a 
purity  unsurpassed  by  the  great  original  of  that  name, 
and  with  a  beauty  and  simplicity  that  won  all  eyes  and 
hearts,  informs  you,  that  the  soup  in  question  was  brought 
to  her  by  her  sister  Mary,  while  she  was  attending  at  the 
bed  side  of  her  sick  father,  and  that  she  gave  it  to  him ; 
that  the  chicken  was  brought  up  at  the  same  time ;  that 
he  drank  some  of  the  soup,  but  ate  heartly  of  the  chicken  ; 
and  not  having  had  her  dinner,  at  his  request  she  joined 
him  in  both,  and  afterwards  carried  the  little  that  remained 
into  the  kitchen,  and  placed  it  upon  the  table.  What 
now  becomes  of  the  statement  of  Ann  Bantom,  that  Mrs. 
C.  brought  down  the  chicken  and  the  soup  ?  What  now 
becomes  of  the  notion  of  the  learned  counsel,  that  the 
portion  of  the  soup  that  was  given  to  Mr.  Chapman,  was 
poisoned,  and  that  that  which  was  returned  into  the  kit- 
chen was  not  the  same  ?  There  can  be  no  mistake  in  the 
time — it  was  on  Monday,  while  the  father  was  sick,  and 
Ann  Bantom  in  the  kitchen.  There  can  be  no  mistake  in 
the  circumstance — it  was  the  only  soup  administered. 
There  is  no  refuge  left,  therefore,  to  the  prosecution,  but 
to  ground  their  arms,  and  march  off  at  once,  without 
flourish  of  trumpet  or  beat  of  drum. 

I  come  now,  in  almost  the  last  place,  to  an  analysis  of 
Fanning.  This  eastern  mountebank — this  peddling  book- 


180  FORENSIC    SPEECHES    OF   DAVID    PAUL    BROWN. 

seller — a  fellow,  vending  bis  salt-and- water  physic,  and 
his  milk-and-water  literature  through  the  land :  one  of  a 

o  * 

wandering  tribe,  as  numerous  as  the  locusts  of  Egypt,  and 
as  great  a  curse.  He  arrives  at  Andalusia,  a  beggar,  with 
an  empty  head,  an  empty  heart,  an  empty  stomach,  and 
an  empty  subscription  list ;  and  with  the  same  generosity 
as  was  displayed  in  the  reception  of  Lino,  she  charitably 
supplies  all  his  wants.  Her  house  is  open  to  him,  her 
table  is  spread  for  him.  His  list  of  subscribers  enlarge 
daily,  even  beyond  his  hopes,  under  her  fostering  care ; 
and  in  kind  requital  for  all  this,  when  by  the  death  of  her 
husband,  she  was  left  without  a  protector  or  a  friend,  in  a 
strange  land  ;  this  viper,  who  had  so  long  coiled  in  flow'ry 
ambush,  deliberately  attempts  stinging  her  joys  to  death. 
He  causes  it  to  be  rumored  through  the  neighborhood, 
that  he  is  the  sacred  depository  of  some  dark  and  dark- 
ling mystery.  He  leaves  word  with  Capt.  Mcllroy,  that 
there  were  deadly  doings  in  that  house;  and  having  left 
his  address,  desires  to  be  sent  for,  if  anything  of  import- 
ance should  transpire.  If  he  knew  anything  that  his 
conscience  forbade  him  to  conceal,  why  did  he  not  speak 
out  like  a  man  ? — why  shroud  himself  in  the  darkest 
mystery?  If  he  knew  nothing — and  it  appears  he  really 
did  know  nothing — why  did  he  thus  contribute  to  give 
wings  to  wild  conjecture  and  unjust  suspicion,  against  one 
who  never  harmed  him?  For  the  latter  part  of  his  cun- 
ning, I  could  suggest  a  cause : — Being  about  to  depart  for 
some  remote  part  of  the  United  States,  and  always  having 
a  crafty  eye  to  business,  he  dexterously  manoeuvres  to  be 
conveniently  recalled,  and  throw  the  expenses  of  his  jour- 
ney upon  the  broad  shoulders  of  the  commonwealth. 

And  now  we  have  him  here,  was  there  ever  a  more 
ridiculous  faroe  than  that  which  he  exhibits  ?  He  opens 
his  pedler  pack  before  this  court  and  jury,  and  while 
every  man  stands  aghast,  with  the  idea  that  like  Pan- 
dora's box,  it  will  pour  forth  all  kinds  of  evils  to  afflict  the 
human  race,  lo,  and  behold,  it  presents  an  empty  void  ! 


CHAPMAN   CASE.  181 

From  the  moment  of  this  disclosure,  the  flood  of  prejudice 
Vegan  to  ebb;  the  thronged  avenues  to  your  court,  were 
literally  deserted  ;  and  the  rapacious  hounds  that  pursued 
the  defendant,  even  here  to  her  last  refuge — with  Blaney 
at  their  head — all  lost  the  scent  of  blood,  and  sueakingly, 
though  reluctantly,  relinquished  their  prey. 

Little,  however,  as  is  derived  from  Fanning,  it  may  not 
be  time  unemployed — as  he  is  the  Magnus  Apollo  of  the 
case — to  take  a  bird's  eye  sketch  of  his  testimony.  He 
first  introduces  himself,  by  referring  to  that  period  of 
time,  when  Mrs.  Chapman,  her  son  William,  Mina,  and 
Mr.  Ash  visited  the  city,  and  remained  absent  about  three 
days.  On  the  night  of  the  second  day,  he  says  Mr.  Chap- 
man was  much  agitated,  and  displayed  a  great  deal  of  pas- 
sion, declaring  that  he  had  had  no  peace  since  Mina  came 
into  his  house,  and  swearing  by  the  Deity  that  he  would 
shoot  him.  After  all  this  storm  of  rage,  however,  accord- 
ing to  his  account,  Mr.  Chapman  quietly  and  tranquilly 
retires  to  his  repose,  leaving  the  witness,  as  a  sort  of  lies 
perian  Dragon,  to  guard  his  honor  during  the  soothing 
hours  of  slumber.  What  a  mass  of  inconsistencies  have 
we  here.  A  husband,  publishing  to  a  comparative 
stranger,  the  story  of  his  wife's  dishonor — raving  this 
moment  in  all  the  torments  of  the  damned,  and  the  next, 
silently  seeking  the  repose  of  his  thorny  pillow — the  conso- 
lations of  his  violated  bed.  But  the  climax  of  this  absur- 
dity, is  the  appointment  of  Fanning  to  stand  watch  and 
ward,  and  like  night's  sentinel,  Silence,  to  challenge  every 
sound.  This  situation,  however,  was  not  active  enough 
for  the  curious  and  prying  disposition  of  Fanning,  and  he 
therefore  soon  followed  the  example  of  his  commander, 
and  slept  upon  his  post. 

The  next  day,  the  plot  thickens ;  the  wanderers  all  re- 
turn ;  the  death  of  Mina's  sister  is  communicated;  and 
Mr.  Chapman  accompanying  Mina  into  the  parlor,  in- 
stead of  pronouncing  him  as  an  impostor,  as  he  had  al- 
leged him  to  be  to  Fanning — instead  of  blowing  his  brains 


182  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

out,  as  he  had  awfully  threatened  the  night  "before — he 
takes  a  seat  with  him  on  the  sofa,  embraces  him,  mingles 
tear  with  tear,  and  as  Fanning  himself  says,  in  the  lan- 
guage of  scripture,  "  mourned  with  the  mourner."  This 
is  not  all :  Mr.  Chapman  immediately  writes  to  Messrs. 
Page  and  Watkinson,  ordering  them  to  prepare  a  splendid 
suit  of  black  for  his  faithful  friend  Don  Lino,  and  to 
charge  it  to  him.  Nor  does  he  stop  here?  even  a  few 
days  before  his  sickness,  he  draws  an  order,  in  his  own 
proper  hand,  upon  Mr.  Fassitt,  and  requests  him  to  pay 
the  balance  of  his  account  to  his  confidential  as;ent  Don 

O 

Lino.  And  when  you  connect  with  these  circumstances, 
the  tender  epistle  written  by  the  deceased  to  the  parents 
of  this  Don  Lino,  or  Don  Devil,  you  must  inevitably  ar- 
rive at  one  of  two  conclusions,  either  that  Chapman  was 
a  madman,  or  Fanning  a  liar. 

The  pedler,  having  after  the  scenes  above  referred  to, 
absented  himself  for  some  days,  again  returns  a  day  or 
two  before  the  close  of  his  patron's  earthly  career — namely, 
on  Monday  morning,  about  nine  o'clock.  With  his  char- 
acteristic modesty,  he  makes  his  way  immediately  into 
the  sick  chamber,  where  he  found  the  deceased,  very  ill, 
and  vomiting  excessively;  this,  however,  he  afterwards 
partially  explains  by  saying, "  he  made  violent  attempts  at 
vomiting,  but  with  little  effect."  The  witness  saw  Mrs.  C., 
who  requested  him  not  to  communicate  the  condition  of 
Mr.  C.'s  health  to  his  brother's  family.  On  the  night  of 
the  same  day  he  is  desired  by  Mr.  Chapman  to  remain 
with  him — "for,"  said  Mr.  C.,  "I  am  very  sick;  when 
Don  Lino  is  sick,  all  attention  must  be  paid  to  him ;  but 
now  I  am  sick,  I  am  deserted."  Before  I  turn  to  other 
portions  of  the  testimony,  allow  me  to  bestow  a  few  re- 
marks upon  that  to  which  I  have  thus  adverted.  Find- 
ing the  deceased  very  ill  on  Monday  morning,  is  in  the 
teeth  of  Ann  Bantom's  testimony,  who  states  he  was 
much  better;  you  must  decide  between  them.  The  re- 
quest of  Mrs.  Chapman  that  he  would  conceal  the  state 


CHAPMAN  CASE.  183 

of  her  husband's  health  from  his  brother's  family,  unex- 
plained, would  operate  against  us.  But  we  have  shown 
you  that  there  was  an  unhappy  fraternal  feud — that  Mr. 
C.  had  not  been  permitted  to  see  his  brother  during  that 
brother's  illness ;  and  that  in  consequence  thereof  he  had, 
on  the  very  day  preceding  the  pedler's  arrival,  written  to 
his  pastor,  and  spoken  to  Mr.  Yandegrift,  to  the  effect  of 
excluding  his  brother's  family  from  all  participation  in 
his  funeral  rites.  He  knew  that  his  widow  would  be 
liable  to  reproach  for  this,  and  therefore  it  was  that  he 
thus  publicly  exculpated  her.  As  to  the  complaints 
made  by  Chapman  to  Fanning  of  the  attentions  to  Don 
Lino  and- the  desertion  of  himself,  uttered  no  doubt  in  the 
way  of  bitterness ;  even  if  Fanning  speak  gospel,  how  little 
are  they  to  be  depended  upon.  We  all  know  the  fretful- 
ness,  the  whims,  the  caprice,  attendant  upon  disease ;  we 
know  that  shortly  after  this  period,  Mr.  C.  was  in  a  state 
of  delirium — and  it  would  be  cruel  in  the  extreme,  to 
permit  his  loose  and  scattering  remarks,  which  owed  all 
their  prosperity  to  the  ear  of  Fanning,  to  be  visited  against 
his  absent  and  injured  wife. 

It  was  said  by  the  opening  counsel  for  the  prosecution, 
no  doubt  anticipating  the  support  of  Fanning's  evidence, 
that  Mrs.  Chapman  drove  her  husband's  attendant  from 
the  room  in  his  last  hours ;  that  she  refused  to  send  for  a 
physician  ;  and  that  she  withheld  from  him  the  medicine 
prescribed.  How  ungenerous  and  unjust  is  such  an  im- 
putation, it  will  be  for  you  to  determine,  after  having 
heard  the  evidence  upon  which  it  is  built.  How  did  she 
drive  the  attendant  from  him?  Her  house  being  a  perfect 
hospital — her  cook  sick — Mina  laboring  under  his  fits, 
either  real  or  affected — her  husband  dying — she  is  even 
compelled  to  assail  the  sympathies  of  Ann  Bantom,  by 
describing  her  distress,  in  order  to  induce  her  to  remain. 
Whom  did  she  drive  from  the  room  ?  Not  Bishop,  for  he 
remained  in  attendance.  If  anybody,  it  must  have  been 
Fanning;  and  how  did  she  expel  him?  She  came  into 


18-4  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

the  chamber  about  eleven  o'clock,  where  finding  Fanning, 
she  expressed  her  obligations  to  him,  and  told  him  she 
would  not  trouble  him  to  remain  through  the  night ;  and 
this  perfectly  simple  and  usual  occurrence,  is  distorted 
into  a  glaring  circumstance  of  guilt. 

"I  requested,"  says  Fanning,  "to  be  allowed  to  go  for 
a  physician,  again  and  again,  and  was  refused  by  her." 
What  a  cowardly  concealment  of  the  true  state  of  the 
facts  do  we  here  perceive.  Dr.  Phillips  had  been  sent  for 
on  Saturday,  and  visited  Mr.  C.  on  Sunday  as  the  family 
physician ;  and  upon  the  cross-examination  of  Mr.  Fan- 
ning, it  appears  that  it  was  not  Mrs.  C.  alone  that  declined 
sending  for  another  physician,  but  that  it  was  also  op- 
posed by  Mr.  C.,  on  the  ground  that  it  might  ofiend  Dr. 
Phillips. 

In  regard  to  refusing,  or  omitting  to  give  the  deceased 
the  medicines  prescribed ;  Dr.  Knight,  who  attended  the 
patient  four  or  five  times,  gives  you  no  reason  to  believe 
it.  I  think  he  gave  him  some  of  the  medicines  himself. 
The  prescription  of  Dr.  Phillips  was  rigidly  pursued,  and 
wonderful  to  relate,  forms  part  of  the  charge  against  us. 
Even  Fanning  admits  salt  and  water  was  promptly  ad- 
ministered ;  and  yet  after  all,  as  T  have  said,  the  argument 
is,  that  when  anything  is  given  it  contains  concealed 
poison  ;  and  if  nothing  be  given,  it  is  an  evidence  of 
barbarity. 

In  conclusion  upon  these  points,  I  say,  the  whole  course 
of  the  defendant's  deportment  during  those  painful  scenes, 
was  attentive,  kind,  and  wife-like.  Dr.  Knight,  it  is  true, 
thought  she  was  not  as  much  in  the  room  as  she  might 
have  been  ;  but  Dr.  Knight  knew  but  little  of  the  helpless 
condition  in  which  she  was  placed,  and  of  the  various 
avocations  to  which  she  was  reluctantly  condemned.  Dr. 
Phillips,  on  the  contrary,  whose  evidence  was  a  model  of 
manliness  and  propriety,  distinctly  informs  you  that  the 
conduct  of  Mrs.  Chapman  was  becoming  and  decorous ; 
that  as  death  approached,  as  they  all  required  rest,  he  led 


CHAPMAN   CASE.  185 

her  and  the  children  out  of  the  room ;  that  he  retired  also 
himself,  desiring  to  be  called  if  any  change  should  take 
place ;  that  he  was  called  about  one  o'clock,  and  that 
Mrs.  C.  and  the  children  surrounded  the  bed  of  the  dying 
man  at  the  moment  of  dissolution.  After  this, all  proper 
and  becoming  measures  were  adopted  for  his  interment ; 
matters  were  managed  in  the  usual  way  on  such  melan- 
choly occasions  ;  the  relatives  and  friends  of  the  departed 
were  invited ;  the  curtaiu  fell,  and  the  last  scene  of  this 
sad  drama  forever  closed. 

The  post  mortem  events,  so  far  as  they  have  not  been, 
already  examined,  remain  to  be  briefly  reviewed.  Your 
patience  and  my  strength  are  nearly  exhausted,  and  I 
therefore  hasten  to  the  termination  of  our  mutual  toil. 

The  marriage  with  Lino,  within  a  fortnight  after  her 
husband's  decease,  is  considered  as  a  damning  spot  upon 
the  escutcheon  of  this  case.  If  the  doctrine  be  true,  that 
"  none  wed  the  second,  but  who  kill  the  first,"  we  are, 
indeed,  driven  to  despair ;  for  the  second  marriage  is  un- 
questionable. But  I  deny  the  doctrine ;  and  although  I 
admit  that  there  was  nothing  to  justify  this  unholy  haste, 
there  was,  I  allege,  much  to  excuse  it.  The  defendant 
was  left  with  a  large  family,  with  limited  and  precarious 
means,  and  without  a  single  friend  upon  whom  to  rely  in 
the  hour  of  adversity  and  distress.  Up  to  this  period  of 
time,  at  least,  she  had  every  reason  to  believe  in  the  re- 
presentations of  the  destroyer.  His  story  was  sustained 
by  the  information  derived  from  the  steward  of  Count 
Survilliers ;  it  was  further  corroborated  by  his  reception 
at  the  abode  and  at  the  table  of  the  Mexican  Consul ;  by 
the  grateful  expressions  of  Miss  "Romana  Cuesta  in  behalf 
of  a  distinguished  though  unhappy  Mexican ;  by  the 
munificence  of  the  stranger  as  exhibited  by  his  will ;  the 
promise  to  allow  six  thousand  dollars  for  his  instruction 
in  the  English  language,  and  the  allegation  of  his  immense 
wealth,  and  that  of  his  family.  But  above  all,  it  was 
confirmed  by  the  confidence  manifestly  reposed  in  him  by 


186  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

her  husband;  as  is  clearly  established  by  irrefragable 
documents,  notwithstanding  all  that  has  been  said  or 
surmised  by  some  of  the  witnesses  in  this  case.  Connect- 
ing with  all  these  circumstances  the  declaration  made  to 
her  by  Mina,  that  it  was  the  dying  request  of  his  friend 
that  he  would  prove  a  protector  to  his  widow,  and  a 
father  to  his  orphans ;  his  further  declaration  of  his  inten- 
tion almost  forthwith  to  return  to  Mexico  ;  of  the  impos- 
sibility of  their  travelling  except  as  husband  and  wife ;  of 
the  customs  of  his  own  country  in  regard  to  disparity  of 
age ;  of  the  importance  of  being.so  united,  that  his  father, 
a  proud  Spaniard,  should  not  be  able  to  dissolve  the 
bonds,  or  deny  to  her  the  advantages  of  survivorship  in 
case  of  his  death  ;  of  the  gratitude  which  he  felt  towards 
one  who  had  sheltered  him  in  poverty  and  nursed  him  in 
disease ;  of  his  intention  to  bestow  the  place  at  Andalusia 
upon  those  relatives  who  were  most  dear  to  her ; — take,  I 
say,  all  these  combined  influences  into  consideration,  and 
then  decide,  if  you  can,  that  she  was  not  infinitely  more 
sinned  against  than  sinning. 

It  is  perfectly  true,  that  hearing,  as  you  have  done,  all 
these  falsehoods  exposed,  it  may  excite  some  surprise  that 
they  were  not  earlier  detected.  But  we  are  to  determine 
upon  her  conduct  with  reference  to  what  was  actually 
represented  and  believed,  and  not  with  regard  to  what 
subsequently  took  place.  It  is  the  privilege  of  but  one 
Eye,  as  has  been  said,  to  dive  into  futurity,  and  to  lay 
open  the  dark  recesses  of  the  heart ;  she  was  human,  and 
therefore  fallible ;  but  there  is  a  vast  difference,  in  the 
contemplation  of  this  court,  and  of  a  higher  court,  be- 
tween human  error  and  human  crime. 

The  marriage  ceremony  having  been  performed  at  JTew 
York,  on  the  5th  day  of  July,  1831,  Mina  returned  to 
Andalusia,  and  the  defendant,  in  pursuance  of  the  previ- 
ous arrangement,  proceeded  to  Syracuse  on  a  visit  to  her 
sister,  Mrs.  Green  ;  the  object  of  which  was  to  place  that 
sister  in  the  possession  of  her  establishment  in  this  coun- 


CHAPMAN   CASE.  187 

try,  while  she  and  her  children  accompanied  jier  husband 
in  the  projected  voyage  to  Mexico. 

Several  letters  were  written  by  her  during  her  absence, 
which  have  been  subjects  of  severe  commentary  on  the 
part  of  the  prosecution  ;  and  which  are  said  to  contain 
nothing  but  an  expression  of  the  wildest  and  most  irre- 
gular passions.  It  is  not  very,  easy  to  say  exactly  what 
should  be  the  character  of  a  letter  from  a  wife  to  a  hus- 
band ;  it  must  depend  very  much  upon  circumstances — 
upon  the  age,  constitution,  temperament,  and  condition 
of  the  parties.  I  have  read  those  letters,  private  and 
confidential  as  they  were,  and  you  will  have  an  opportu- 
nity of  reading  them ;  and  I  take  leave  to  say,  that  they 
exhibit  nothing  that  is  incompatible  with  the  most  entire 
purity  of  the  heart,  or  with  a  judicious  exercise  of  the 
faculties  of  the  head.  They  were  not  intended  for  public 
exposure,  and  therefore,  to  us,  who  cannot  enter  precisely 
into  the  feelings,  of  the  parties,  they  may  appear  some- 
what unreasonable  and  extravagant.  But  test  them,  if 
you  please,  by  letters  which  you  have  either  written  or 
received  in  a  similar  relation,  and  you  will  at  once  per- 
ceive that  they  are  neither  extraordinary  nor  remarkable. 
It  is  the  privilege  of  married  life  to  speak  and  to  write 
unreservedly  ;  and  your  own  experience  will  be  sufficient 
to  satisfy  yoil,  that  in  this  instance  that  privilege  has  not 
been  carried  by  the  defendant,  to  a  licentious  or  culpable 
extreme. 

There  is  one  letter,  however,  written  by  the  defendant 
to  Mina,  while  at  Washington,  which  is  said  to  contain 
at  least  an  equivocal  passage,  and  to  afford  ground  for 
the  belief,  in  the  language  of  the  opposite  counsel,  "  that 
all  was  not  perfectly  right."  In  passing  to  the  considera- 
tion of  that  clause,-  we  must  be  allowed  to  premise,  that 
it  is  not  sufficient,  that  all  was  not  perfectly  right ;  it  is 
incumbent  upon  the  prosecution  to  show  to  your  satisfac- 
tion that  all  was  perfectly  wrong.  I  agree  that  all  was 
not  perfectly  right.  It  was  not  right  that  she  should 


183  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

marry  within  a  little  month  after  her  husband's  decease. 
It  was  not  right  that  Mina  should  sell  her  jewels,  her 
plate,  her  horses,  and  her  carriage,  or  that  he  should  give 
away  the  trunk  and  books  of  her  deceased  husband.  It 
was  not  right  that  he  should  take  two  ladies  to  the 
United  States  Hotel,  and  that,  remaining  there  with 
them,  he  should  pay  their  expenses  and  his  own  out  of 
his  wife's  honest  earnings.  It  was  not  right  that  he 
should  squander  her  means  in  the  journey  to  Baltimore, 
under  the  false  profession  that  it  was  for  the  purpose  of 
obtaining  a  legacy  of  forty-five  thousand  dollars,  left  by 
his  friend  Casanova  ;  and  it  was  manifestly  wrong  that 
he  should  practise  all  sorts  of  frauds  and  falsehoods,  upon 
this  unsuspecting  woman,  during  his  absence.  I  agree, 
therefore,  as  I  have  said,  that  all  was  not  right ;  but  I 
deny  that  writing  under  the  influences  fairly  attributable 
to  these  manifold  outrages,  the  clause  referred  to  in  her 
letter,  is  to  be  considered  as  an  evidence  of  her  having 
aided  in  the  destruction  of  the  deceased. 

It  is  a  well  settled  principle  in  criminal  jurisprudence, 
and  it  cannot  be  too  strongly  borne  in  mind,  that  where 
the  acts  or  language  of  men  admit,  equally,  of  opposite  in- 
terpreptations,  that  construction  shall  be  adopted  which  is 
most  favorable  to  innocence.  With  the  benefit  of  these 
impressions,  let  us  turn  to  the  objectionable  paragraph. 
I  quote  it  from  memory,  and  shall  willingly  submit  to 
correction,  if  I  quote  it  erroneously  :  "  When  I  reflect, 
Mina,  I  am  constrained  to  acknowledge,  I  cannot  believe, 
that  God  will  suffer  either  you  or  me,  ever  to  be  happy  on 
this  side  of  the  grave."  Was  not  reflection  upon  the 
events  just  referred  to  entirely  sufficient  to  induce  these 
expressions,  without  imagining  the  perpetration  of  an 
offence  so  heinous  as  that  charged  against  the  prisoner  ? 
She  had  been  imprudent ;  she  had  been  imposed  upon ; 
she  had  been  impoverished,  together  with  her  children, 
to  whom  she  was  tenderly  attached ;  and  if  this  were 
not  a  state  of  circumstances,  calculated  to  produce  such  a 


CHAPMAN   CASE.  189 

reflection,  I  am  utterly  at  a  loss  to  conceive  what  would 
be.  On  this  side  of  the  grave,  indicates  worldly  suffering 
for  worldly  indiscretion.  If  she  had  been  guilty  of  the 
imputed  crime,  her  fears  would  not  have  fallen  short  of 
that  punishment  which  awaits  the  wicked  beyond  the 
grave. 

Taking  these  letters  all  together,  and  carefully  perus- 
ing them,  nothing  can  be  found  inconsistent  with  the  con- 
sciousness of  innocence.  ,  Can  you  suppose,  if  this  woman 
had  committed  so  odious  and  hateful  a  crime  as  that  im- 
puted to  her — writing  as  she  did,  under  the  sanctity  of  a 
seal,  and  to  her  partner  in  iniquity — she  never  would  have 
allowed  a  single  word  to  escape  her,  in  which  the  lynx 
eye  of  the  prosecution  could  perceive  a  semblance  of 
guilty  remorse  or  timidity.  If  we  are  determined  to  sus- 
pect crime  first,  and  then  to  distort  and  pervert  every- 
thing to  the  support  of  that  suspicion  ;  no  man,  innocent 
or  otherwise,  can  escape  punishment.  I  defy  the  counsel, 
with  all  their  learning,  skill  and  accuracy,  to  write  a  let- 
ter upon  any  subject,  in  which  I  cannot  detect,  being  sus- 
piciously disposed,  either  an  intention  to  conceal  some 
motive  that  they  entertain,  or  a  disposition  to  convey 
some  idea  that  they  do  not.  If  their  composition  be 
loose,  it  will  be  indefinite  and  equivocal,  and  admit  of  a 
vast  variety  of  constructions.  If  it  be  terse  and  precise, 
we  may  plausibly  infer,  from  that  very  terseness  and  pre- 
cision, that  they  are  anxious  to  guard  themselves  against 
the  disclosure  of  some  lurking  motive. 

In  reference  to  the  letter  written  from  Erie  to  Colonel 
Cuesta,  I  have  but  a  remark  or  two  to  make,  carrying 
with  me  the  benefit  of  those  observations  upon  the  pre- 
vious correspondence.  That  letter,  be  it  remembered, 
was  written  several  months  after  her  departure  from 
Andalusia.  It  contains  this  passage:  "When  I  reflect 
that  it  is  possible  that  my  dear  husband  died  of  poison, 
and  that  I  myself  am  suspected  of  being  an  accomplice,  I 
am  shocked,  I  am  paralyzed."  Now,  says  the  opposite 


190  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

counsel,  "  why  should  she  dream  of  being  suspected  ?"  I 
answer,  for  the  most  obvious  reason  ;  because  the  public 
journals  throughout  the  United  States,  to  which  she  un- 
doubtedly had  reference,  uttered  nothing  but  the  most 
malevolent  and  unfounded  reports  of  her  participation  in 
this  crime.  She  must  have  closed  her  eyes,  her  ears,  and 
her  understanding,  against  every  passing  wind  ;  if  she  had 
not  discovered,  long  ere  the  date  of  that  letter,  the 
weight  of  obloquy  and  suspicion  that  was  heaped  upon, 
and  crushed  her. 

In  the  same  letter,  she  mentions,  among  various  other 
matters,  the  inferences  that  may  be  drawn  from  her 
unfortunate  flight;  and  although  that  subject  is  not  now 
presented  in  the  exact  order  of  time,  I  perhaps  cannot  do 
better  than  briefly  consider  and  dispose  of  it. 

The  reasons  which  she  herself  gives  for  abandoning  the 
protection  of  her  household  gods,  and  temporarily  desert- 
ing her  children,  for  the  purpose  of  avoiding  the  violence 
of  the  gathering  storm ;  are  such  as  to  carry  conviction 
of  their  truth  to  every  bosom.  She  was  a  teacher — and 
had  been  for  years — of  a  large  and  highly  respectable 
seminary ;  her  reputation  was  her  stock  in  trade ;  expo- 
sure was  but  another  word  for  death  ;  that  she  should 
shrink  from  it,  therefore,  was  natural — was  excusable. 
That  she  contemplated  but  a  temporary  absence,  is  plain 
from  her  conversation  with  Mrs.  Smith ;  from  her  com- 
munication to  Justice  Barker  at  the  time  of  drawing  up 
the  power  of  attorney ;  and  from  the  situation  in  which 
she  permitted  her  family  to  remain. 

But  two  matters  remain,  ere  I  surrender  this  cause  to 
you.  The  first  is  the  state  of  things  a  few  days  after  the 
funeral ;  and  the  second,  the  interview  between  Mr.  Re- 
corder Mcllvaine  and  the  defendant.  Let  us  take  them 
in  their  order. 

Mrs.  Smith,  who  is  a  lady  in  every  sense  of  the  word, 
called  at  Andalusia,  I  think,  the  day  after  the  funeral : 
Mrs.  Chapman,  apologizing  for  the  want  of  servants,  an- 


CHAPMAN   CASE.  191 

swered  the  door  herself.  She  was  dressed  in  black,  with 
a  white  turban  bearing  a  lilac  border ;  and  this  little 
matter  struck  Mrs.  Smith  with  some  surprise ;  I  really 
don't  know  why.  Grief  displays  itself  very  differently 
in  different  persons,  and  in  different  circumstances.  It  is 
not  in  "  customary  suits  of  solemn  black  "  alone,  that  the 
heart  exhibits  its  afflictions.  Many  of  the  gentlemen 
whom  I  have  now  the  honor  to  address  for  the  first,  and 
perhaps  for  the  last  time,  are  disbelievers  in  external 
mourning;  and  whether  they  are  or -are  not,  they  would 
hardly  convict  a  lady  of  murder,  from  the  color  of 
her  turban.  Rely  upon  it,  if  she  had  been  the  wicked 
thing  they  would  make  her,  there  would  have  been  no 
deficiency  in  what  may  be  called  dramatic  effect ;  her 
error  would  have  been  in  excess;  like  the  Ephesian  dame, 
she  would  have  swept  the  very  earth  with  her  widowed 
weeds,  and  veiled  her  face  in  sorrow.  Her  dress  was  not 
affected,  her  agonies  were  not  eloquent ;  but  they  were 
not  the  less  poignant  or  sincere : 

"  The  grief  that  cannot  speak, 
"Whispers  the  o'erfraught  heart,  and  bids  it  break." 

There  was  one  expression,  however,  of  hers,  which 
breathed  volumes — that  rather  escaped  from  the  labor- 
ing soul  than  was  uttered  by  it — that  was  addressed  to 
no  one,  though  in  the  presence  of  Mrs.  Smith — and  that 
sounded  like  the  knell  of  departed  hope ;  departed,  never 
to  return.  Casting  her  eyes  involuntarily  upon  tHe  heav- 
ens, she  exclaimed  in  a  stifled  and  subdued  voice :  "  The 
sun — the  sun — looks  gloomy."  This  simple  touch  of 
nature  unfolded  more,  much  more,  than  all  the  studied 
forms  and  ceremonies  of  woe. 

Again:  Mrs.  Smith,  though  surprised  at  first,  must 
have  been  entirely  reconciled  to  her  deportment,  as  she  at 
that  time  placed  her  child  under  the  care  of  the  defend- 
ant; and  shortly  after  took  up  her  own  residence,  and 
that  of  her  husband,  under  this  very  roof.  I  will  not 


192  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

weaken  these  facts  by  bestowing  upon  them  a  single  com- 
ment. 

On  the  afternoon  of  the  29th  day  of  August,  the  re- 
corder, accompanied  by  High  Constable  Blaney,  and  Mr. 
Reeside,  waited  upon  Mrs.  Chapman,  at  her  house.  The 
object,  as  it  is  stated,  was  to  discover  traces  of  Mina  ; 
with  reference  to  his  impositions,  malpractices,  and  for- 
geries while  at  Washington.  Mrs.  Chapman,  at  the  time 
of  their  arrival,  was  at  church  with  her  sister,  but 
shortly  returned  ;  and  the  recorder  being  invited  into 
the  parlor,  immediately  communicated  the  purpose  of  his 
visit.  He  knew  nothing  at  this  time  of  her  second  mar- 

o 

riage,  and  therefore  much  of  her  conduct,  which  with 
that  knowledge  he  would  have  easily  understood,  ap- 
peared to  this  intelligent  gentleman  to  be  extraordinary. 
He  spoke  of  Mina's  character — of  his  falsehoods,  of  his 
frauds — and  inquired  whether  she  herself  had  not  been 
plundered  and  despoiled  by  him.  She  hesitated,  and  de- 
nied it — until  her  letter,  which  had  been  intercepted,  was 
produced,  recounting  a  long  catalogue  of  injuries  to 
which  she  had  been  subjected.  She  even  then  rather 
appeared  to  evade  or  to  extenuate  the  evils  she  had  suf- 
fered. But  will  you  here  allow  me  to  inquire  what 
course  she  should  have  pursued  ?  Irrevocably  wedded  to 
a  felon — the  officers  of  justice  upon  his  crime-covered 
track — was  she  to  join  in  the  general  cry — was  she  to 
hunt  down  one,  to  whom,  bad  as  he  was,  she  had 
plighted  her  faith  ?  She  gave  no  other  information  than 
was  extorted  from  her — and  I  openly  rejoice  that  she  did 
not.  Fidelity  is  the  brightest  jewel  that  adorns  the  fe- 
male character;  it  is  the  last  that  woman  loses ;  audit 
would  have  been  an  eternal  reproach  to  her  sex — it  would 
have  been  perdition  to  her,  when  her  vile  husband's  fate 
was  poised  before  her,  if  the  whole  police  of  the  city,  with 
all  their  mental  racks  and  tortures,  could  have  extracted 
from  her  heaving  bosom,  a  single  groan  to  guess  at. 
Had  she  then  betrayed  Mina,  infamous  and  abandoned 


CHAPMAN  CASE.  193 

as  he  was,  it  would  have  supplied  to  the  prosecution  the 
most  unanswerable  argument  of  her  previous  guilt:  to 
betray  or  to  destroy,  is  but  the  same  principle,  differently 
developed. 

Still  not  knowing  the  marriage,  the  recorder  proceeded, 
fixing  his  keen  and  inquisitorial  eye  upon  her  at  the 
same  time,  to  inquire  whether  she  had  any  reason  to  be- 
lieve that  Mina  had  contributed  to  the  death  of  her  hus- 
band. She  changed  color — her  face  assumed  a  livid  hue 
— and  she  appeared  for  a  moment  as  if  she  would  have 
sunk  to  the  earth.  She  recovers,  however,  and  replies: 
"  No — he  was  his  faithful  friend  ;  I  cannot  think  it  pos- 
sible he  should  do  anything  so  diabolical !"  And  yet  it 
is  thought  this  is  not  a  becoming  expression  of  surprise. 
According  to  my  experience  in  human  nature,  it  at  once 
expressed  surprise,  doubt,  affection,  horror,  and  all  the 
violent  and  conflicting  emotions  which  the  question  was 
so  eminently  calculated  to  excite.  But  whether  it  did  or 
not,  you  do  not  sit  here  to  decide  upon  comparative 
strength  of  nerve — upon  the  various  results  on  various 
individuals,  of  sudden  and  unexpected  shocks — upon  the 
change  of  the  complexion — or  the  still  more  variable 
forms  of  passion  or  expression ;  depending  as  often  for 
their  character  upon  the  mind  of  the  observer,  as  upon 
that  of  the  observed.  Mr.  Phillips,  in  his  valuable  essay 
upon  the  theory  of  presumptive  proof,  speaking  in  refer- 
ence to  the  celebrated  case  of  Captain  Donnellan,  in 
which  it  was  alleged  that  the  defendant  displayed  more 
uneasiness  than  was  even  natural  to  one  in  his  situation, 
makes  these  appropriate  remarks  :  "  It  is  a  delicate  thing 
to  decide  this  question  ;  it  is  a  nice  thing  to  fix  the 
standard  of  human  feelings,  and  to  say  what  degree  of 
perturbation  an  individual  already  branded  with  guilt  or 
conviction  shall  feel,  when  placed  in  circumstances  which 
make  him  to  be  suspected  of  a  capital  crime.  Lawyers, 
and  those  accustomed  to  see  and  advise  with  persons  in 
that  unfortunate  predicament,  can  only  tell  the  terrible 

13 


194  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

apprehension  that  every  one  feels  at  the  idea  of  being 
brought  to  a  public  trial ;  it  is  altogether  a  new  view  of 
human  nature,  and  we  seldom  estimate  rightly,  feelings 
which  we  have  never  experienced,  nor  expect  to  experi- 
ence in  our  own  persons,  nor  have  witnessed  in  those  of 

others. 

'  To  thee  no  reason  ! 
Who  good  has  only  known,  and  evil  has  not  proved.'  " 

i  But  I  go  further  than  Mr.  Phillips,  and  utterly  deny 
even  the  competency  of  those  who,  from  their  office,  are  in 
the  habitual  communion  with  guilt,  to  decide  from  the 
expression  of  the  face  or  the  features,  upon  the  impulses 
of  the  heart.  Nay,  more  than  this,  their  very  knowl- 
edge of  the  worst  part  of  mankind,  with  whom  they 
are  so  frequently  brought  into  contact,  imbues  the  mind 
with  jaundiced  and  unfavorable  impressions  of  our  na- 
ture, and  leads  them  to  detect  a  felon  in  every  face : — 
if  you  are  bold,  it  is  the  hardihood  of  confirmed  guilt — 
if  you  are  fearful,  it  is  the  timidity  of  crime.  I  do  not 
mean  to  say  that  every  judge  of  a  criminal  court  may 
become  a  Jeffries  ;  because,  thank  heaven,  at  this  day  the 
moral  influence  of  public  opinion  provides  a  salutary  re- 
straint ;  but  I  do  mean  to  say,  that  whatever  may  be  the 
theory  of  our  rights,  experience  abundantly  instructs 
us,  that  the  moment  a  charge  is  preferred  against  an 
individual,  he  bears  the  stamp  of  Cain  upon  his  brow ; 
and  inverting  the  best  principle  in  criminal  jurispru- 
dence, he  is  almost  uniformly  considered  to  be  guilty, 
till  his  innocence  shall  be  established  ;  and  perhaps  even 
afterwards.  In  these  remarks,  no  one  can  suppose  that 
I  speak  in  reference  to  any  individual,  much  less  to  the 
highly  respectable  and  amiable  recorder,  for  whom  I 
entertain  the  sincerest  personal  and  professional  regard. 
I  speak  to  human  nature  and  common  experience,  and 
I  do  it  the  more  confidently,  as  I  acknowledge  my  own 
liability  to  the  influence  I  thus  deprecate. 

In  further  illustration  of  this   doctrine,  I  need   only 


\ 

CHAPMAN  CASE.  195 

advert  to  the  case  introduced  by  my  learned  and  eloquent 
colleague,  of  the  unfortunate  Thomas  Harris,  as  reported 
in  Phillips.  In  that  case,  though  the  defendant  was 
utterly  innocent,  the  fact  of  his  changing  color,  and 
appearing  confused,  was  relied  upon  as  a  strong,  if  not 
conclusive  evidence  of  crime;  yet  that  very  confusion 
was  produced,  partly  from  the  consciousness  that  the 
fact  referred  to  might  operate  against  him,  and  partly 
from  the  shame  incident  to  a  disclosure  of  his  avarice. 
If,  therefore,  different  causes  entirely  consistent  with 
innocence  of  the  particular  charge,  may  create  shame 
and  consternation — and  if  sufficient  independent  cause 
can  be  shown,  as  in  the  present  instance ;  how  obviously 
unjust  must  it  be,  that  it  should  be  construed  into  evi- 
dence of  the  imputed  crime.  It  is  like  the  attempt 
-made  by  the  prosecution  in  respect  to  the  symptoms 
of  the  deceased ;  inferring,  as  they  have  done,  an  exis- 
tence of  poison,  from  indications  of  disease,  which  were 
altogether  consistent  with  other,  and  natural  causes. 

As  to  the  evidence  of  Blaney,  but  little  need  be  said. 
It  would  rather  seem,  from  what  he  says,  that  Mrs.  Chap- 
man apprized  him  of  the  direction  of  Mina's  journey, — 
though  the  recorder  does  not  mention  it, — as  Blaney,  it 
seems,  soon  after  this  conversation,  wrote  to  Boston,  and 
succeeded  in  arresting  the  offender.  But  I  protest,  once 
for  all,  against  the  testimony  of  such  men  as  Blaney, 
whether  for  or  against  us.  He  is  a  police  officer,  speak- 
ing from  police  reports,  or  rather  from  the  report  of  Mr. 
McClean,  who  was  here,  and  did  not  condescend  to  lend 
his  support  to  the  commonwealth.  It  is  the  business  of 
a  constable  to  suspect — and  no  one  can  escape  him  ; 
carrying,  as  he  always  does,  suspicion  in  one  eye,  and  a 
search  warrant  in  the  other. 

Thus,  gentlemen  of  the  jury,  have  I  attempted  show- 
ing ;  in  the  first  place,  that  no  poison  was  administered  ; 
and  in  the  second  place,  that  at  all  events,  it  was  not 
administered  by  this  defendant;  either  of  which  is  suf- 


196  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

ficient  for  the  purposes  of  the  present  case.  If  the  de- 
fendant be  innocent,  it  is  not  for  me  to  show  who  may  be 
guilty ;  that  is  the  business  of  the  prosecution.  It  can 
impart  no  gratification  to  me  wantonly  to  travel  out  of 
the  strict  line  of  my  duty,  to  load,  or  trample  upon  a 
fallen  fellow  creature. 

In  conclusion,  allow  me  to  observe,  that  to  those  who 
have  been  engaged  in  this  discussion,  and  to  those  who 
shall  be  engaged  in  the  determination  of  the  present 
question,  this  matter  of  life  or  death  may  be  a  subject 
of  utter  indifference  and  contempt,  as  it  is  contemplated 
in  relation  to  others.  Clothed  in  our  own  imaginary 
infallibility,  what  sympathy  can  be  expected  from  us, 
by  that  isolated,  hapless  being,  upon  whom  your  irre- 
vocable decree  is  about  to  be  pronounced.  Sympathy  is 
ever  the  offspring  of  a  common  liability  to  evil,  or  suscep- 
tibility of  good  ;  and  what  penalty  do  you  fear,  or  what 
privilege  do  you  enjoy,  in  common  with  an  individual 
who  is  presented  before  you,  suspected  and  accused  of 
the  most  horrible  of  crimes.  The  very  circumstance  of 
her  being  placed  at  that  bar,  is  calculated  to  provoke 
involuntary  prejudice  ;  and  however  we  may  be  taught 
that  both  justice  and  mercy  should  incline  us  to  the  be- 
lief of  innocence  while  passing  upon  the  fate  of  a  human 
being;  experience, as  I  have  already  intimated,  frequently 
establishes  a  widely  different  practice. 

The  law  tells  us — nature  tells  us — and  humanity  abun- 
dantly instructs  us,  that  whenever  a  prisoner  stands 
charged  with  an  offence,  and  such  an  offence ;  instead  of 
substituting  the  busy  rumor,  the  misty  moonshine  of 
malice  or  prejudice,  for  the  meridian  light  and  fulness  of 
truth  ;  we  should  patiently  await  the  disclosure  of  facts 
which  the  evidence  itself,  and  the  evidence  only,  can 
legitimately  disclose;  thereby  placing  our  verdict  upon  a 
substantial  foundation,  which,  hereafter,  in  the  hour  of 
deliberate  and  calm  reflection,  may  remain  firm  and  un- 
shaken. Pause,  now  while  the  opportunity  is  afforded — 


CHAPMAN  CASE.  107 

now,  ere  it  be  too  late — now,  while  reflection  comes  with 
healing  on  its  wing.  Hereafter,  years  and  floods  of  peni- 
tence and  remorse  can  never  obliterate  or  wash  away  the 
consequences  of  an  error,  which  seals  forever,  and  irre- 
trievably, the  defendant's  melancholy  doom.  Consid- 
erations of  this  kind  all  plead,  "like  angels,  trumpet 
tongued,"  in  her  behalf,  and  might  almost  "  persuade  Jus- 
tice to  break  her  sword." 

The  charge  in  the  indictment  is  most  horrible  and 
atrocious,  it  is  true :  a  husband's  murder !  The  strength 
of  the  testimony,  should  be  proportionate  to  its  enormity. 
It  can  never  diminish  the  horror  of  the  charge,  that  the 
innocent  should  suffer.  The  defendant,  nevertheless,  bows 
submissively  to  your  pleasure  :  if  such  be  your  terrible 
decree,  let  the  axe  fall ;  consign  her  to  an  ignominious 
grave,  and  her  children  to  pitiless  orphanage.  Return 
then  to  your  own  domestic  circle^ — to  your  own  firesides  ; 
and,  surrounded  by  your  partners  and  your  offspring,  re- 
call and  relate  the  lamentable  occurrences  of  this  day's 
trial ;  tell  them  that  the  popular  clamor  was  too  loud 
and  too  general  to  be  escaped — the  popular  prejudice  too 
powerful  to  be  resisted ;  tell  them,  that  under  those  influ- 
ences you  have  consigned  a  mother  to  a  timeless  grave, 
and  her  children  to  endless  ruin ;  and  thereby  give  them 
to  understand,  how  frail  and  feeble  is  the  tenure  of 
human  happiness — human  character — and  human  life. 

I  have  now  done,  gentlemen  of  the  jury,  and  the 
future  destinies  of  the  prisoner  are  committed  to  your 
charge.  For  herself,  conscious  as  she  is,  of  her  own  inno- 
cence, and  advanced  as  she  is  in  life,  she  feels  compara- 
tively but  little.  But  you  will  pardon  a  sister's — and  a 
daughter's — and,  above  all,  a  mother's  emotions,  while 
confronting  that  awful  tribunal,  upon  whose  stern  sen- 
tence must  depend  not  only  her  own  prospects,  so  far  as 
they  remain  to  her — not  only  her  own  existence — but,  as 
I  have  said,  the  hopes  and  very  existence  of  those  to  her 
more  precious  far  than  life.  To  your  hands,  however,  we 


198  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

confidently  resign  her.  You  are  the  ministers  of  the 
law — the  standard-bearers  of  justice — and  she  feels  as- 
sured you  will  sustain  the  balance  with  a  firm  and 
unwavering  hand — let  which  scale  may  preponderate. 

My  duty  is  at  last  discharged — feebly  and  imperfectly, 
I  acknowledge;  but  as  fully  as  my  health  and  limited 
abilities  will  allow.  It  remains  for  you  to  fulfil  yours. 
In  doing  so,  let  not,  I  again  beseech  you,  the  client  suffer 
for  the  faults  and  deficiencies  of  her  counsel ;  but  gen- 
erously incline  your  ear  to  the  pleadings  of  your  hearts, 
and  ever  bear  in  dear  and  sacred  remembrance  that 
"  mercy  is  twice  blessed — it  blesses  them  that  give,  and 
them  that  take." 


DR.  FROSTS  CASE. 


THE  PEOPLE  OP  THE  STATE  OF  NEW  YORK  v.  'RICHARD 

K.  FROST. 

In  the  Court  of  Sessions  for  the  City  and  County  of  New 
York,  held  December  13th,  1837. 

CHARGE— MANSLAUGHTER. 

Present,  Recorder  RIKER,  and  Alderrneii  ACKER  and 
TAYLOR. 

Counsel  for  the  Prosecution. 
Mr.  PHENIX,  District  Attorney,  and  Mr.  GRIFFIN. 

For  the  Accused. 

JOHN  A.  MERRILL,  ESQ.,  of  New  York;  DAVID  PAUL 
BROWN,  of  Philadelphia. 

INTRODUCTION. 

This  case,  which  occupied  ten  days  in  the  trial,  excited 
great  interest, — not  so  much  from  its  intrinsic  importance, 
as  through  the  intense  feeling  and  bitter  animosities  which 
it  engendered  between  rival  schools  of  medicine,  viz. :  be- 
tween the  Medical  Faculty  and  the  Thomsonians. 

Each  system  had  its  advocates  and  organs,  and  the 
battle  between  them  raged  even  more  fiercely  in  the 
journals  of  the  day — both  medical  and  miscellaneous — 
than  in  the  court  room. 

The  facts  were  simply  these:  Tiberius  G.  French — a 
young  man  of  promise — being  slightly  indisposed  placed 
himself  under  the  care  of  Dr.  Frost,  who  was  at  the  head 

(199) 


200  FORENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

of  the  Thomson  Infirmary  in  New  York  City.  After 
being  subjected  to  the  Thomsonian  treatment  for  five 
days,  a  "  regular"  physician  was  called  in,  at  the  suggestion 
of  a  brother  of  the  deceased ;  but  despite  every  effort, 
the  young  man  died  on  the  night  of  the  fifth  day  after 
his  entrance  into  the  infirmary. 

It  was  alleged  by  the  prosecution  that  the  accused  had 
no  medical  education,  and  was  ignorant  of  the  nature  and 
operation  of  remedial  agents, — that  he  had  administered 
deleterious  herbs,  and  poisonous  decoctions  made  of  lo- 
belia, &c. 

The  defence,  on  the  other  hand,  advocated  the  treat- 
ment according  to  Thomsonism ;  denied  the  use  of  de- 
leterious drugs ;  and  very  strongly  intimated  that  the 
introduction  of  the  "regular"  physician  (Dr.  Cheeseman) 
was  the  immediate  cause  of  the  death. 

The  trial  resulted  in  a  verdict  of  "  Guilty  of  man- 
slaughter in  the  fourth  degree." 

Motions  in  arrest  of  judgment,  and  for  a  new  trial,  were 
made,  and  the  accused  was  allowed  to  go  at  liberty  until 
these  rules  were  disposed  of. 


DOCTOR  FROST'S  CASE.  201. 


SPEECH  IN 
DOOTOE  FKOST'S   CASE. 


WITH  DEFERENCE  TO  THE  COURT: 

After  a  long  and  perilous  voyage,  gentlemen  of  the 
jury,  we  have  at  length  steered  our  little  barque  into  a 
safe  harbor,  where  we  may  venture  to  cast  anchor — 
where,  with  your  favor,  we  may  ride  securely — laugh  at 
the  billows  and  defy  the  storm.  If,  may  it  please  your 
honors,  my  learned  colleague  has  felt  himself  called  upon 
to  express  his  gratitude  to  the  court,  for  favors  conferred 
upon  him  ;  what  must  be  my  obligations,  for  the  kindness, 
the  courtesy,  the  unmerited  distinctions,  bestowed  so 
freely,  upon  a  comparative  stranger,  in  my  person  ?  My 
acknowledgment  shall  consist,  not  in  vain  thanks,  but  in 
acceptance  bounteous — in  other  words.  I  shall  endeavor  to 
discharge  the  debt  by  facilitating  the  labors  of  the  court, 
and  requiting  benefits  by  desert. 

In  approaching  the  consideration  of  this  cause,  I  must 
be  allowed  to  congratulate  my  brethren  of  the  bar,  here 
and  elsewhere,  upon  the  certainty  that  their  professional 
engagements  and  emoluments  shall  never  cease,  so  long  as 
medical  science  and  its  professors  shall  continue  to  flourish 
— may  they,  therefore  (I  say  it  with  all  my  heart),  be 
immortal.  From  the  time  of  Hippocrates  down  to  this 
moment,  the  feuds  and  bickerings,  the  private  quarrels, 
and  open  hostilities  among  the  medical  family,  have  been 
such  as  to  form  a  proverb — a  by-word  and  reproach.  If 
such  be  their  intestine  dissensions  and  divisions ;  you  may 


202  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

readily  imagine  how  deadly  and  destructive  must  the 
conflict  be,  when  the  whole  of  this  irritable  race,  in  their 
aggregate  of  fury,  come  into  direct  collision  with  an 
opposing  system.  How  terrible  the  concussion !  how  ap- 
palling the  result ! 

Some  opinion  may  be  formed  of  the  relentless  nature 
of  this  strife,  from  the  daily  display  of  vindictiveness  to 
which  you  have  been  the  unwilling  witnesses.  "  The  trial 
by  wager  of  battle,"  now  grown  obsolete  even  in  England, 
where  it  so  long  prevailed,  however  brutal  in  its  char- 
acter, was  less  offensive  to  the  eye  of  justice,  than  the 
course  here  adopted  by  these  "  potent,  grave  and  reverend 
seignors."  Their  business,  rightly  understood,  is  to  cure, 
and  not  to  kill ;  but  they  have  inverted,  by  practice,  the 
philosophy  of  their  science,  and  here  magnanimously 
unite  (almost  the  only  union  they  have  ever  been  guilty 
of)  for  the  philanthropic  and  generous  purpose  of  offering 
up  an  unoffending  victim  upon  the  altar  of  vengeance. 
"We  are  informed  upon  classic  authority,  which  the  ripe 
and  ready  memory  of  the  court  will  at  once  recognize — I 
think  the  account  is  contained  in  Herodotus,  though  it 
has  also  found  its  way  into  other  authors — that  a  won- 
derful artist,  of  Greece,  constructed  a  brazen  bull,  of 
such  curious  and  exquisite  workmanship  as  to  astonish 
every  beholder.  This  bull  he  presented  to  Phalaris,  his 
sovereign,  assuring  him  at  the  same  time,  that  if  heated, 
and  a  human  being  placed  within  it,  the  dying  groans  of 
the  victim  would  resemble  the  roaring  of  a  bull,  and  thus 
render  the  illusion  complete.  "  It  is  well,"  said  the  mon- 
arch, even  more  shocked  at  his  cruelty  than  delighted 
with  his  skill,  "  it  is  well — the  bull  shall  be  heated,  and 
you  yourself  shall  be  placed  inside  of  it,  for  it  is  most  fit 
that  the  artificers  of  death  should  die."  Shall  I  point  the 
story — can  you  not  make  the  application  ?  This  prosecu- 
tion is  the  brazen  bull — the  medical  faculty  are  the  inven- 
tors— you,  gentlemen  of  the  jury,  are  the  sovereign — the 
defendant  is  the  intended  victim,  and  I  boldly  ask  you  to 


DOCTOR  FROST'S  CASE.  203 

imitate  the  example  of  royal  justice  to  which  I  have  re- 
ferred— to  protect  the  innocent,  and  doom  the  artificers 
of  death — to  death. 

Why  should  they  thus  attempt  hunting  down  a  fellow 
citizen  struggling  in  self  defence,  in  a  tribunal  of  justice  ? 
Why  should  the  defendant's  rights  be  entirely  disre- 
garded, and  the  adherents  of  these  opposing  systems  be 
permitted  to  "  hack  each  others'  daggers  in  his  breast  ?" 
Does  such  a  course,  to  say  nothing  of  justice  or  charity, 
redound  to  the  credit  of  the  medical  faculty?  Does  it 
improve  our  estimation  of  their  learning  or  their  talents  ? 
"  Dwells  there  such  rage  in  heavenly  minds  ?"  Persecution 
ever  defeats  its  object — the  bruised  and  broken  flower  is 
more  redolent  than  when  flourishing  on  its  parent  stem ; 
and  the  virtues  of  the  Aloe  tree  are  rendered  more  appar- 
ent by  the  perfume  which  it  imparts  even  to  the  axe  that 
fells  it.  The  glorious  temple  of  Christianity  is  founded  in 
persecution ;  and  its  fabric  is  cemented  and  sustained  by 
the  blood  of  martyrs,  and  of  the  Prince  of  Martyrs,  the 
Redeemer  of  the  world.  Still  how  natural  does  it  seem 
to  oppress  the  humble,  to  trample  upon  the  fallen — how 
tempting  to  the  foot  of  arrogance  and  ambition  is  every- 
thing that  may  form  a  ladder  to  their  lofty  hopes. 

The  struggle  in  which  the  medical  faculty  is  here  en- 
gaged is  not  regulated  by  sympathies,  or  charity,  or 
humanity — it  is  a  struggle  for  self — they  are  determined 
to  bear  no  rival  near  their  throne — whole  hecatombs  shall 
perish  that  they  may  prosper ;  and  when  they  have  once 
succeeded  in  obtaining  a  sort  of  sovereign  sway  in  the 
land,  "Wo  unto  all  who  shall  oppose  resistance  to  their 
overweening  strength. 

Having  thus  adverted  to  what  must  have  forced  itself 
upon  the  attention  of  the  most  casual  observer;  and 
which,  in  the  temple  of  justice,  should  not  be  allowed  to 
pass  without  remark  and  unqualified  reprobation ;  we 
come  now  to  the  consideration  of  these  points  in  this 
cause,  which,  although  much  more  pertinent  to  the  issue, 


204  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

will,  I  fear,  exert  a  less  vital  influence,  upon  its  decision, 
than  those  subjects  which  I  have  thus  briefly  adverted  to, 
and  unhesitatingly  condemned.  Let  it  be  established — 
I  say  it  once  for  all — that  a  body  of  physicians  are  the 
only  individuals  authorized  to  prescribe — to  cure  or  to  kill 
— and  you  create  a  despotism,  the  pernicious  results  of 
which  exceed  all  imagination.  They  shall  make  their 
own  terms  with  you — the  rich  and  the  poor  shall  be  alike 
subjects  to  their  sway  ;  and  the  instance  which  the  testi- 
mony has  exhibited  of  a  physician  who  exacted  from  a 
patient  racked  with  disease  and  pain — and  balancing  as 
it  were  upon  the  pivot  of  destiny — a  fee  of  five  dollars  as 
an  inducement  to  a  visit,  will  not  be  a  solitary  or  a  start- 
ling instance,  but  be  rendered  familiar  from  its  frequency, 
and  almost  laudable  from  its  moderation. 

Without  further  prelude,  let  us  inquire  what  is  the  in- 
dictment. It  contains  three  counts.  The  first, charging 
the  defendant  with  having  produced  the  death  of  the 
deceased,  wilfully,  maliciously  and  feloniously,  by  admin- 
istering a  certain  drug  or  herb,  called  lobelia ;  and  by 
also  administering  cayenne  pepper,  and  applying  the 
steam  bath. 

The  second  count,  charges  the  defendant  with  produc- 
ing death  by  the  medicines. 

The  third  count,  charges  him  with  causing  death  by 
the  bath,  and  some  of  the  medicines  comprised  in  the  prior 
counts. 

The  law  of  New  York,  under  which  this  indictment  is 
framed,  provides  for  four  degrees  of  manslaughter;  and 
to  which  particular  degree  this  prosecution  is  directed,  it 
is  our  business  to  ascertain,  and  no  information  has  been 
given. 

Such,  then,  is  the  indictment — the  chart  by  which  we 
have  steered.  It  charges  the  defendant,  you  perceive, 
with  felonious  homicide ;  and  it  is  founded  upon  statu- 
tory provisions,  upon  the  subject  of  manslaughter,  con- 
tained in  the  revised  code  of  the  laws  of  New  York.  For 


DOCTOR  FROST'S  CASE.  205 

•what  earthly  purpose  those  provisions  were  framed,  I 
confess  my  inability  to  perceive:  at  common  law,  all  the 
offences  embraced  by  them  are  clearly  prohibited  and 
punished ;  and  that  which  was  plain  before,  is  rendered 
somewhat  doubtful  and  mysterious,  by  this  legislative 
effort  to  improve  it.  Philosophy,  however,  teaches  us 
not  to  increase  evils  by  unavailing  regret,  but  rather  to 
'overcome  by  boldly  confronting  them:  I,  therefore,  ad- 
dress myself  to  my  task. 

The  district  attorney — unwilling  to  rely  upon  any  one 
degree  of  manslaughter — has  converted  this  act,  embrac- 
ing four  degrees,  into  a  sort  of  sweep-net ;  in  some  one  of 
the  meshes  of  which  he  expects  to  ensnare,  or  entangle, 
and  secure  the  defendant.  I  have  called  upon  him,  as  I 
had  the  right  to  do,  to  state  his  specific  charge,  in  order 
that  time  might  not  be  unprofitably  employed  in  attack- 
ing where  there  is  no  resistance,  or  resisting  where  there 
is  no  attack.  This  he  has  declined,  as  he  had  no  right 
to  do,  and  thereby  subjected  me  to  the  necessity  of  trav- 
elling through  the  four  orders  of  manslaughter,  for  the 
purpose  of  showing  the  defendant's  entire  innocence  of 
all  ;  or  rather,  to  speak  more  technically  and  critically, 
for  the  purpose  of  showing  that  he  has  not  been  proved 
guilty  of  any.  (Mr.  Phenix  here  rose,  and  said  that  he 
should  rely  upon  the  nineteenth  section  of  the  law,  and 
maintain  that  the  defendant  had  been  guilty  of  man- 
slaughter in  the  fourth  degree.) 

The  iourth  degree  of  manslaughter  is  embraced  in  the 
general  clause  ;  it  is  all  that  the  defendant  can  be  guilty 
of,  and  I  deny  that  he  is  guilty  of  that.  This,  therefore, 
forms  the  only  legitimate  issue  between  the  common- 
wealth and  myself. 

We  set  out  on  the  part  of  the  defendant  by  averring 
that  no  act  of  mankind  can  be  criminally  punishable, 
without  being  accompanied,  either  actively  or  construc- 
tively, by  a  corrupt  motive.  In  other  words,  that  the 
heart  is  alone  the  abode  of  crime ;  that  the  act  and  the 


206  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

motive  must  cohere ;  and  that  in  no  case  is  the  act  alone 
punishable :  and  there  is  but  one  class  of  cases  in  which 
the  motive  or  agreement  to  do  an  unlawful  act,  or  to  do 
a  lawful  act  in  an  unlawful  manner,  is  subject  to  the 
criminal  penalties  of  the  law,  and  that  is  the  class  to 
which  conspiracies  belong.  The  law  there  interposes,  as 
it  were,  by  anticipation,  to  forestall  the  offender  ere  yet 
he  come  to  fall.  To  crop  crime  in  its  germ  or  in  its  very 
bud,  and  thereby  to  prevent  its  growing  into  a  luxuriant 
and  pernicious  harvest,  and  finally  spreading  ruin  and 
disaster  around.  This  is  the  doctrine  in  regard  to  illegal 
combinations — but  as  respects  individuals,  the  maxim  is 
ul^"on  est  crimen  voluntas  sine  perpetratione." 

In  saying  that  there  must  be  an  actual  or  constructive 
corruption  of  design,  we  may  be  inferred  to  mean,  that 
where  there  is  a  culpable  negligence,  or  a  gross  want  of 
skill,  in  a  case  like  the  present,  the  law  may  imply  an 
evil  design,  and  thereby  render  it  criminal.  If,  therefore, 
in  the  present  case  it  should  appear  that  the  ingredients 
as  charged  in  the  indictments  were  not  administered  ;  or 
if  administered  that  they  did  not  produce  death;  or  if 
they  did  produce  death,  that  there  was  no  criminal  ne- 
glect or  culpable  ignorance :  the  prosecution  rests  with- 
out its  pillow,  and  the  defendant  must  be  acquitted. 

This  is  certainly  presenting  the  question  in  the  most 
favorable  shape  for  the  commonwealth. 

The  defendant  hereby  assumes — upon  the  evidence — 
to  negative,  or  disprove  the  charge :  whereas  he  has  the 
right  to  call  upon  the  district  attorney  to  establish — 
clearly  and  beyond  the  reach  of  a  reasonable  doubt — the 
allegation  of  guilt ;  and  without  this  the  case  can  neither 
be  embraced  by  the  statute, nor  the  common  law. 

In  1  Hale's  Pleas  of  the  Crown,  429.  this  doctrine  will 
be  found — no  higher  authority  can  be  required — "  If  a 
physician  give  a  poison  without  intent  of  doing  any 
bodily  hurt,  but  with  intent  to  cure  or  prevent  disease, 
and  contrary  to  the  expectation  of  the  physician,  it  kills 


DOCTOR  FROST'S  CASE.  207 

him,  this  is  no  homicide — and  the  like  of  a  surgeon — and 
I  hold  their  opinions  to  be  erroneous  that  think,  if  he  be 
no  licensed  surgeon  or  physician  that  occasions  this  mis- 
chance— then  it  is  felony ;  for  physic  and  salves  were  be- 
fore licensed  physicians  and  surgeons,  and  therefore,  if 
they  be  not  licensed  according  to  the  statute,  they  are 
subject  to  the  penalties  of  the  statute,  but  God  forbid, 
that  any  mischance  of  that  kind  should  make  any  person 
not  licensed,  guilty  of  murder  or  manslaughter." — Sir 
"Wm.  Blackstone  concurs  in  the  doctrine — and  in  But- 
chell's  Case,  2  C.  &  P.  632,  it  was  ruled,  that  it  made  no 
difference  whether  the  party  was  a  regular  or  irregular 
physician ;  Baron  Hallock  adding,  that  in  remote  parts 
of  the  country  many  persons  could  be  left  to  die  if  irregu- 
lar surgeons  were  not  allowed  to  practice — and  in  Long's 
Case,  4  C.  &  P.  398,  Parke,  J.,  observed,  "  that  whether 
the  party  was  licensed  or  unlicensed,  is  of  no  consequence, 
except  in  regard  to  his  liability  to  pecuniary  penalties  for 
acting  contrary  to  acts  of  Parliament." 

It  is  not  my  intention  here  to  discuss  the  merits  of  the 
indictment — they  are  subjects  of  law,  and  belong  to  the 
court.  For  although  it  is  perfectly  true  as  the  court  has 
taken  occasion  to  tell  you,  that  you  are  the  judges  both 
of  law  and  fact ;  it  never  yet  has  been  necessary  for  me, 
in  the  course  of  my  humble  practice,  to  enjoin  upon  the 
jury  the  propriety  of  disregarding  the  opinion  of  an  en- 
lightened judicial  tribunal — and  I  trust  it  never  will  be. 
I  have  no  greater  fears  of  the  court  than  I  have  of  the 
jury,  upon  this  or  any  other  subject  when  rightly  under- 
stood ;  and  I  trust  therefore  you  will  listen  with  all 
proper  attention  to  the  learning  and  wisdom  which  may 
fall  from  the  bench — yielding  to  it  not  a  servile,  but  a 
rational  and  conscientious  obedience ;  not  surrendering 
the  exercise  of  your  own  mental  faculties,  but  allowing 
them  to  be  enlightened,  invigorated  and  enlarged  by  the 
genial  influence  of  superior  science  and  experience. 

The  court  and  the  jury  appear  to  the  greatest  ad  van- 


208  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

tage,  and  best  discharge  their  respective  duty,  while 
mutually  borrowing  and  imparting  aid  to  each  other — 
and  it  is  thus,  and  thus  only,  that  the  advantages  of 
criminal  jurisprudence  can  be  fully  enjoyed  or  preserved. 

Let  us  concede  for  the  sake  of  the  argument,  that  the 
ingredients  as  specified  in  the  indictment  were  adminis- 
tered by  the  defendant  to  the  deceased  in  the  manner  and 
form  as  charged.  The  proof  scarcely  warrants  the  con- 
cession ;  but  I  wish  to  avoid  all  higgling  and  chaffering 
about  trifles,  and  to  come  at  once  to  the  attractive  metal 
of  this  case.  The  only  two  inquiries  then  will  be — 

First.  Did  the  medicines  thus  administered  produce 
death  ? 

We  have  no  wish  to  charge  others  with  that  offence,  of 
which  we  deny  our  guilt.  But  if  regular  phj^sicians  are 
not  to  be  considered  the  only  class  privileged  to  kill,  it 
really  would  appear  that  Dr.  Cheeseman — one  of  the  wit- 
nesses, most  earnest  and  eager  in  this  prosecution — can 
hardly  escape  censure.  I  know  that  when  the  patient 
dies,  the  doctor  is  generally  in  the  wrong ;  as  when  a 
cause  is  lost,  its  loss  is  often  attributed  to  the  lawyer ; 
but  making  all  allowance  for  this  want  of  generosity  or 
charity  on  the  part  of  those  who  are  writhing  under  the 
affliction  of  a  painful  bereavement  or  remediless  injury, 
there  is  still  much  to  condemn,  even  with  an  impartial  ob- 
server, in  the  deportment  of  Dr.  Cheeseman,  as  unques- 
tionably established  by  the  evidence.  He  is  certainly  en- 
titled to  no  favorable  consideration  from  us  ;  as  his  mind 
peems  to  be  imbued  and  embittered  with  the  most  extra- 
ordinary prejudice  from  the  first  to  the  last  against  the 
individual  now  upon  his  trial — a  man  who  had  never 
done  him  any  wrong ;  who  cheerfully  relinquished  the 
patient  into  his  hands  and  who  prudently  communicated 
or  caused  to  be  communicated  to  him  the  course  of  treat- 
ment previously  resorted  to.  In  requital  for  all  which, 
without  any  personal  knowledge  of  the  defendant,  the 
doctor  expresses  the  opinion  that  he  has  fallen  into 


DOCTOR  FROST'S  CASE.  209 

dangerous  hands ;  and  leaves  the  patient  to  die  while  he 
runs  after  a  consulting  physician  to  serve  him  (Dr. 
Cheeseman)  in  the  amiable  capacity  of  a  witness,  rather 
than  an  adviser.  What  cause  had  he  for  suspicion — un- 
conscious of  wrong,  what  should  alarm  him — 

Why  should  the  innocent 

Tremble  and  quake  with  fear, — the  guilty  fear, 
For  cowardice  and  guilt  appall  each  other, — 
But  virtue  ever  wears  a  lion's  heart 
Beneath  the  downy  plumage  of  the  dove. 

Dr.  Cheeseman  is,  I  understand,  a  physician  of  some 
eminence — he  is  a  man  of  unquestionable  respectability 
— but  the  current  of  prejudice  has  with  him  overcome  all 
the  kindlier  feelings  of  his  nature ;  and  induced  him  in 
this  case,  in  which  a  young  man  is  engaged  in  a  holy 
struggle,  not  for  life,  it  is  true,  but  for  liberty  and  reputa- 
tion— without  which  life  is  nothing — to  volunteer  as  un- 
generous and  pernicious  a  sentiment,  as  ever  tainted  the 
atmosphere  of  justice  from  the  lips  of  a  witness.  I  re- 
gret to  speak  harshly  of  this  gentleman.  I  regret  more 
that  he  should  deserve  it ;  but  I  trust  I  shall  ever  ad- 
vance fearlessly  against  any  opponent,  where  duty  points 
and  leads  the  way.  It  has  fallen  to  my  lot,  in  the  course 
of  my  professional  career,  to  examine  many  distinguished 
physicians,  and  to  be  present  at  the  examination  of  more  ; 
and,  although  there  may  have  been  some  exceptions,  I  am 
proud  and  happy  to  say,  that  their  testimony  has  gener- 
ally been  characterized  by  a  tenderness  and  humanity 
towards  the  accused,  which  would  naturally  be  inspired 
by  a  science,  which  necessarily  and  daily,  enlists  all  the 
sympathies  and  charities  of  the  human  heart. 

Dr.  Cheeseraan,  called  in,  as  he  says,  while  the  patient 
was  in  "articulo  mortis" — never  having  seen  him  before, — 
without  making  inquiries  into  his  complaint  or  his  treat- 
ment, ventures  unhesitatingly  to  say,  that  the  disease  of 
which  he  died  was  not  typhus  fever,  although  he  cannot 

14 


210  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN7. 

tell  what  it  was  ;  and  pretty  plainly  implies,  that  the 
medicines  administered  by  the  defendant  caused  the 
death  of  the  patient.  How  ungenerous!  how  unjust! 
The  patient  dies  under  the  assiduous  efforts  of  the  de- 
fendant to  restore  him ;  gentlemen  adopting  an  opposite 
system  are  employed ;  they  reject  everything  that  is 
incompatible  with  what  is  called  regular  practice;  and 
the  enemy,  becoming  the  judge,  Dr.  Frost  is  to  be  con- 
demned. Why,  upon  this  principle,  the  good  Samaritan 
himself  might  have  been  indicted,  had  the  wounded  trav- 
eller died  upon  his  hands.  How  would  Dr.  Cheeseman, 
or  any  other  of  this  learned  faculty,  be  content  to  abide 
by  such  a  test.  In  the  most  successful  practice  some 
will  be  lost.  The  doctor's  "  prescription"  cannot  with- 
stand ihejiat  of  fate.  The  disease  may  be  mistaken;  the 
remedies  of  course  misapplied  ;  the  calculations  of  the 
physician  defeated  by  latent  and  adverse  causes ;  the  con- 
stitution misunderstood — a  thousand  accidents  or  contin- 
gencies may  operate  to  resist  the  most  consummate  skill. 
What  then ! — is  a  medical  gentleman,  entertaining  oppo- 
site, or  different  views  of  practice,  to  pronounce  condem- 
nation upon  the  course  thus  adopted.  Some  physicians 
resort  to  bleeding  in  almost  all  cases — others,  in  scarcely 
any  :  some  administer  calomel  freely — others,  not  at  all : 
some  refuse  cold  drinks  to  a  patient  under  the  parching 
influence  of  a  fever- — others,  stuff,  and  surround  him 
with  ice :  some  in  cases  of  cholera,  particularly,  intro- 
duce foreign  substances  into  the  veins — others,  hold  it 
to  be  certain  death:  some  adopt  cathartics  —  others 
emetics.  Each,  in  short,  has  his  favorite  mode  of  ex- 
pelling disease,  and  each,  to  a  certain  extent,  at,  least, 
condemns  the  other.  Is  it  then  fair,  is  it  honorable, 
that  the  temple  of  justice  should  be  converted  into  a 
bloody  arena ;  and  that  the  dignified  professors  of  an 
illustrious  science  should  here  publicly  engage,  in  osten- 
sible support  of  their  several  theories,  but  actually  to 
the  destruction  of  them  all? 


DOCTOR  FROST'S  CASE.  211 

But  to  return  to  the  inquiry.  Did  the  intended  remedy 
produce  or  cause  death  ? 

Before  we  examine  the  treatment,  let  us  turn  our 
attention  to  the  state  and  circumstances  of  the  deceased 
for  a  few  days  prior  to  his  entering  the  infirmary  of  the 
defendant.  On  the  evening  of  Monday,  preceding  the 
Thursday  on  which  he  applied  to  Dr.  Frost — for  it  was 
his  own  voluntary  application — Tiberius  G.  French  was 
engaged  at  a  convivial  party — where  he  indiscreetly,  I 
do  not  say  improperly,  indulged  himself.  Next  morn- 
ing while  at  breakfast  with  Mr.  Whiting,  he  complained 
of  serious  indisposition  and  spoke  of  his  imprudence  the 
night  before.  His  disease  still  continued,  and  on  Thurs- 
day morning  had  very  considerably  increased.  The  cause 
of  its  exacerbation,  as  was  stated  by  himself  to  Mr. 
Whiting,  was  his  having  been  employed  on  Wednes- 
day night  till  midnight  in  drawing  a  will  for  a  dying 
man,  in  a  cold  chamber;  which  had  affected  him  so  much 
that — in  his  own  words — "he  was  only  able  to  write  a 
few  lines  at  a  time."  On  Thursday  afternoon  he  resolved 
to  go  to  the  infirmary — the  disease  no  doubt  having 
taken  a  deep  root  in  his  system : — for  when  he  left  Mr. 
Whiting's  he  was  almost  unable  to  walk,  and  appeared, 
as  the  witness  said,  to  "  drag  himself  along."  He  seemed 
to  have  inherited  a  preference  for  the  Thomsonian  sys- 
tem, as  his  mother  it  appears  in  her  lifetime  entertained 
very  favorable  impressions  of  it.  He  consulted  his  brother 
— left  his  brother's  office — and  on  the  evening  of  Thurs- 
day we  find  him  at  the  infirmary.  In  what  condition 
is  he  there  ?  In  the  presence  of  the  sister  of  the  defend- 
ant, he  draws  nearer  and  nearer  to  a  large  coal  fire ; 
and  finally  to  express  the  severity  of  the  chill  under 
which  he  labors,  he  tells  her,  that  it  appeared  as  though 
if  he  were  to  lay  himself  upon  the  coals  they  would 
scarcely  heat  him.  This  is  the  individual  who -was  said 
to  be  the  picture  of  health.  At  that  time,  at  least,  it 
was  a  melancholy  picture.  The  icy  fingers  of  disease, 


212  FORENSIC    SPEECHES   OF   DAVID    PAUL   BROWN. 

if  not  of  death,  were  already  grappling  with  his  vital 
energies. 

I  have  said  that  it  was  his  own  voluntary  choice  to 
place  himself  at  this  infirmary — that  no  inducements 
were  held  out  and  no  persuasion  resorted  to:  and  I 
turther  maintain  it  was  a  most  judicious  choice.  He  left 
his  boarding  house,  where  he  could  have  had  but  scanty 
attendance ;  with  an  occasional  visit  from  a  physician 
of  five  or  ten  minutes  in  a  day ;  with  no  nursing,  or  per- 
haps what  is  worse,  bad  nursing ;  and  he  places  himself  in 
an  establishment  where  he  is  the  very  focus  of  attention, 
and  has  nurses  around  him  of  whom  an  emperor  might 
be  proud : — the  mother  of  Mr.  Frost,  Mrs.  Rae,  Mr. 
Roleston,  and  last  and  most  important,  Miss  Frost 
herself. 

"  Oh  !  Woman, — in  our  hours  of  ease, 
Uncertain,  coy,  and  hard  to  please, 
And  variable  as  the  shade 
By  the  light  quivering  aspen  made  ; 
When  pain  and  anguish  wring  the  brow, 
A  ministering  angel  thou." 

This  is  the  lady  to  whom  Ulysses  French  expressed 
such  unbounded  gratitude,  and  whom  he  has  attempted 
so  abundantly  to  requite  by  the  conviction  of  her  brother. 
This  is  what  I  suppose  they  call  paying  a  debt  in  kind — 
she  watches  night  after  night  in  sleepless  anxiety  on  the 
pillow  of  anguish  and  subsequent  death — and  to  repay 
these  attentions,  Ulysses  D.  French  watches  day  after 
day,  with  equal  vigilance,  to  convict  the  defendant  of 
gross  ignorance  or  culpable  neglect. 

I  entertain  the  kindest  feelings  towards  the  witness, 
Mr.  French;  his  deportment  towards  his  brother  was 
every  thing  it  should  have  been.  I  speak  its  true  charac- 
ter when  I  say  it  was  fraternal ;  it  is  at  the  same  time  a 
consolation  and  an  honor  to  him,  and  he  may  rejoice  in 
its  remembrance,  when  the  vanities  of  this  world  shall 


DOCTOR  FROST'S  CASE.  213 

have  passed  away.  Still,  it  is  a  subject  of  unfeigned  re- 
gret— though  certainly  not  without  its  excuse — that  he 
should  so  far  have  permitted  the  storm  of  feeling,  or  of 
passion,  or  of  prejudice,  to  sway  or  swerve  his  mind  from 
its  true  moorings,  as  to  compel  him,  apparently  at  least, 
to  unite  with  this  prosecution,  and  to  join  in  that  hue 
and  cry  which  has  for  its  object  the  destruction  of  the 
defendant. 

I  have  shown  you  the  condition  in  which  the  deceased 
came  into  the  infirmary ;  and  suggested  the  reasons  by 
which  he  was  probably  influenced.  It  has  been  said  from 
the  symptoms  described,  that  Doctor  Frost  was^  doubtful 
whether  he  labored  under  an  idiopathic,  or  symptomatic 
fever ;  in  simple  words,  whether  the  fever  was  of  that 
character  which  precedes  small  pox,  or  was  typhus 
fever  ;  he,  however,  settled  down  upon  the  opinion  that 
it  was  typhus,  that  "  ungenteel  disease,"  which,  as  Doc- 
tor Manly  says,  never  assails  the  aristocracy — but  riots 
alone  among  poverty  and  rags.  The  learned  professor, 
therefore,  I  suppose,  infers,  that  as  Mr.  French  was  a  gen- 
tleman, Dr.  F.  must  have  been  mistaken.  It  is  true  Dr. 
M.  never  saw  the  patient  in  his  life,  and  therefore,  merely 
relies  upon  a  sort  of  sweeping  theory ;  and  even  in  that 
theory,  I  will  show  you,  runs  a-foul  of  some  of  his  pro- 
fessional brethren.  Dr.  Smith,  of  Rochester, — who  ap- 
pears not  to  know  that  there  is  more  than  one  class  of 
typhus  fever  according  to  modern  science,  and  who 
would  seem  to  consider  it  rather  a  genteel  and  gentle  dis- 
ease— says  that  in  its  ordinary  course,  it  would  not  kill 
under  one  month,  and  in  .many  cases  not  under  three 
months. — And  when  I  asked  him  to  explain  how  it  hap- 
pened that  in  the  year  1812,  the  typhus  fever  devastated 
the  United  States  from  Maine  to  Georgia,  and  almost  in- 
variably terminated  life  in  less  than  a  week ;  he  chival- 
rously got  rid  of  the  difficulty  by  declaring  the  disease 
then  so  called,  was  not  typhus  fever  ;  thereby  routing 
the  whole  phalanx  of  regular  physicians. 


214  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

Dr.  Manly  does  not  exactly  concur  in  this — particu- 
larly in  regard  to  the  grades  or  classes  of  typhuB.  He 
acknowledges  the  typhus  mitior,  and  the  typhus 
gravior — under  which  head  he  ranks  what  he  calls  the 
congestive  typhus ;  and  the  latter  or  severer  disease, 
according  to  his  experience,  might  kill  a  man  in  from 
three  days  to  a  week.  The  disease  of  which  Tiberius  G-. 
French,  died,  was  exactly  what  Dr.  Manly  calls  conges- 
tive typus — Dr.  Rogers,  who  conducted  the  post  mortem 
examination,  establishes  this  almost  beyond  question. 
When,  after  four  days,  he  raised  the  body — not  as  that 
of  Lazarus  was  raised,  to  reanimate  it — but  to  furnish 
evidence  against  the  living,  he  says :  "  I  found  that  the 
internal  parts  exhibited  great  vascularity — the  right  lung 
was  ruptured — a  quantity  of  serous  fluid  was  effused 
through  that  lung,  and  the  appearance  of  the  external 
coats  of  the  stomach  was  more  vascular  than  ordinary," 
&c.,  &c. — all  evidence  of  congestion.  The  ingenious  mode 
of  reasoning,  by  which  the  medical  faculty  support  this 
charge  is,  first,  to  deny  that  it  is  typhus  fever  at  all, 
without  being  able  to  say  what  was  the  technical  charac- 
ter of  the  fever — having  never,  let  it  be  remembered, 
seen  the  patient  until  the  disease  and  the  victim  were 
both  spent, — and,  in  the  second  place,  they  attempt  show- 
ing that  typhus  fever  would  require  from  one  to  three 
months  to  destroy  life.  What  is  the  corollary  of  such 
reasoning  ?  certainly  not  that  the  patient  necessarily  died 
of  the  treatment ;  but  that  the  disease,  whether  typhus 
or  not,  was  of  a  graver  order  than  the  common  typhus  ; 
and  therefore  probably  embraced  by  the  class  of  cases  re- 
ferred to  by  the  venerable  Dr.  Gilbert  Smith  and  Dr. 
Manly — as  speedily  terminating  life. 

If  these  views  be  sound,  everything  is  left  in  doubt  as 
to  the  cause  of  death.  There  is  not  a  physician  out  of 
the  many  examined  already — always  excepting  the  per- 
spicacious Dr.  Cheeseman — who  pretends  to  the  ability  to 
determine  upon  the  specific  character  of  the  disease,  from 


DOCTOR  FROST'S  CASE.  215 

only  seeing  a  patient  in  the  last  hour  of  his  life — much 
less,  four  days  after  death.  Dr.  Joseph  Smith,  the  con- 
sulting physician  (who,  as  a  witness,  was  a  model  of 
manliness  and  propriety),  repudiates  and  rejects  the  idea 
altogether,  except  in  certain  cases  where  the  fever  is 
merely  symptomatic ;  as  in  cases  of  small  pox,  measles, 
&c.  ;  and  where  the  exact  character  of  the  disease  is 
rendered  manifest  by  cutaneous  eruptions,  and  by  other 
unequivocal  signs. 

To  strengthen  the  suggestion,  that  not  the  disease  but 
the  treatment  produced  the  death,  two  other  witnesses 
were  called — Dr.  Rogers,  a  distinguished  surgeon,  and 
Mr.  Chilton,  a  chemist — who  is  also  dignified  by  the  title 
of  Doctor.  Indeed,  it  is  worthy  of  remark,  in  passing, 
that  while  these  learned  pundits  are  so  frugal  in  dispens- 
ing medical  honors — even  in  name — to  the  Thomsonians  ; 
there  is  scarcely  a  private  in  their  battalion  that  you 
would  not  take  for  a  "  field-marshal "  at  least. — Titles  are 
squandered  with  the  most  lavish  and  unsparing  hand. 
Every  dentist  among  them — every  chemist — every  bleeder 
— is  a  doctor ;  and  those  only  who  are  among  the  obscure 
and  the  missing,  are  their  patients.  For  those,  gentlemen 
of  the  jury,  we  have  looked,  and  looked  in  vain.  How, 
and  why  is  this  ?  On  one  side  we  have  given  you  the 
ocular  proof  of  the  beneficial  results  attendant  upon  our 
practice.  "We  have  examined  scores  of  living  witnesses, 
all  of  whom  have  been  reclaimed  from  the  jaws  of  the 
tomb — some,  after  an  express  abandonment  by  the  regu- 
lar physician — by  the  botanical  system.  We  have  given 
them  practice,  they  have  answered  by  theory.  We  have 
produced  our  patients — where  are  theirs  ?  Am  I  not 
authorized  to  conclude  that  they  are  beyond  the  reach 
of  a  subpo3na  ;  and,  that  before  they  can  be  produced,  the 
doctors  must  condescend  to  dig — aye,  to  DIG  for  them  ? 

Well,  still  let  us  hear  the  doctors:  Dr.  Rogers,  as  I 
have  said,  conducted  the  post  mortem  examination.  He 
removed  the  stomach  and  part  of  the  intestines,  with  the 


216  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

liquid  they  contained ;  which  he  subsequently  confided  to 
the  analysis  of  Dr.  Chilton.  This  learned  and  scientific 
gentleman,  so  far  as  it  appears  in  testimony,  never  exam- 
ined the  brain,  or  the  heart ;  those  two  great  seats  and 
citadels  of  life.  His  search  is  directed  only  to  lobelia ; 
and  accordingly  the  stomach  is  his  spoil.  Well,  sir,  what 
did  it  contain  ?  The  answer  is,  "  I  handed  it  over  to 
Dr.  Chilton,  and  he  detected  lobelia  " — Heaven  save  the 
mark! — But  let  us  turn  to  Dr.  Chilton,  and  look  to  his 
account: — What  did  you  do,  sir?  "I  applied  tests  to 
the  contents  of  the  stomach,  after  having  first  evaporated 
the  liquid  to  dryness."  Well,  sir,  what  did  you  find? 
"  I  found  about  seventy-five  grains  of  vegetable  matter ; 
arid,  I  think,  but  am  not  prepared  to  swear,  there  was 
lobelia  among  it."  What  test  did  you  apply?  "I  tasted 
it,  and  I  thought  it  tasted  like  tobacco." — Mirabile  dictu! 
— Such  is  the  evidence  upon  which  this  prosecution  is  to 
be  sustained. 

It  is  perfectly  well  settled,  that  of  all  earthly  tests  the 
vegetable  tests  are  the  most  imperfect ;  and  that  of  all 
vegetable  tests,  that  through  taste  is  the  most  illusory  and 
fallacious.  Supposing  the  chemist  to  speak  sooth  in  this, 
— why,  the  extract  from  a  quid  of  tobacco ;  or  the  mere 
decoction  of  a  pinch  of  snuff;  or  the  saliva  from  a  segar, 
would  settle  the  fate  of  a  physician,  if  found  in  the  stom- 
ach of  his  patient. 

But  we  are  told  by  these  learned  Thebans — and  that 
too  with  a  sneer — that  we  pursue  a  system  laid  down  by 
one  Sam  Thomson,  who  sprung  from  an  obscure  corner 
of  the  State  of  Massachusetts,  and  whose  father  was  a 
farmer.  Why,  gentlemen,  who  was  it  that  shed  the 
brightest  lustre  upon  the  vast  science  of  astronomy  ? — 
one  Dave  Rittenhouse,  a  native  of  Pennsylvania,  who 
followed  the  plough.  Who  was  it  that  tore  the  light- 
ning from  heaven,  and  the  sceptre  from  tyrants? — one 
Ben  Franklin,  a  printer's  boy,  who  protected  himself 
against  the  inclemency  of  the  winter  by  exercise  alone, 


DOCTOR  FROST'S  CASE.  217 

and  lived  upon  a  single  roll  of  bread  a  day.  Who  was 
it — when  the  veteran  armies  of  Great  Britain  faltered 
and  fled,  in  the  Indian  war — safely  conducted  the  re- 
treat, and  secured  the  remnant  of  the  army,  though  he 
had  "  never  set  a  squadron  in  the  field,  nor  the  division 
of  a  battle  knew,  more  than  a  spinster?" — one  George 
"Washington,  a  Virginia  planter.  Who  was  it  that  shed 
the  brightest  halo  around  the  brightest  reign  that  the 
world  ever  knew — the  reign  of  Elizabeth — the  age  of 
the  Raleighs — the  Burleighs — the  Bacons  and  the  Syd- 
neys? — why  it  was  one  Ben  Jonson,  a  quondam  ap- 
prentice to  a  bricklayer;  and  one  Will  Shakspeare,  a 
peasant  boy,  and  shrewdly  suspected  of  poaching  upon 
his  neighbor's  deer.  Or  passing  from*  astronomy,  phil- 
osophy and  poetry,  to  law :  Who  was  it  that  rose  from 
low  beginnings  to  be  Lord  Chief  Justice  of  England? — 
one  Charley  Abbot,  whose  father  was  a  barber.  Who 
was  it  that  rose  to  be  Lord  High  Chancellor  of  Eng- 
land ? — one  Jack  Copley,  whose  lather  was  an  American 
painter.  Who  was  it  that  became  the  brightest  star  in 
the  judicial  constellation  of  Great  Britain? — one  Phil 
Yorke,  whose  father  no  man  knew.  Or  passing  to  a 
still  further  illustration — Who  was  it  that  subjugated 
three-fourths  of  Europe,  and  confident  against  the  world 
in  arms,  made  the  autocrat  of  all  the  Russias  tremble 
upon  his  throne?— one  Napoleon,  who  rose  from  the 
station  of  a  corporal  to  such  consummate  power — to 
such  dazzling  heights — as  to  enable  him  to  look  down 
upon  emperors,  kings,  princes,  and  the  potentates  of  the 
earth — while  he  unmade  .them.  Let  us  hear,  therefore, 
no  more  of  one  Sam  Thomson — for  although  I  do  not 
mean  to  say  that  there  never  was  a  great  man  among  the 
"  wealthy,  curled  darlings  of  the  nation,"  yet  I  do  mean 
to  say — and  all  history  sustains  the  assertion — that  lux- 
ury and  affluence  are  calculated  to  enfeeble  the  mind  ; 
and  that  those  therefore  who  are  great  in  despite  of 
them,  would  probably  be  much  greater  if  removed  from 


218  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWN. 

their  influence.     It  is  a  well  known  fact  among-  gentle- 

O      O 

men  of  the  turf,  that  blooded  horses,  who  for  years  have 
been  permitted  to  browse  and  career  on  broken,  irregular 
and  mountainous  pastures,  have  acquired  a  much  greater 
muscular  strength,  and  in  sportsmen's  phrase,  better 
bottom,  than  those  who  are  fed  upon  a  level  surface :  the 
application  of  this,  although  a  physical  illustration,  is  not 
difficult.  Men  whose  lives  have  been  an  uninterrupted 
course  of  difficulty — a  perfect  up-hill  work,  acquire  in 
time  a  self-dependence,  a  self-sufficiency,  and  a  prompti- 
tude in  every  emergency,  which  those  who  have  been 
accustomed  to  stand  for  fame  on  their  forefather's  feet, 
or  to  lean  for  all  pleasure  upon  another's  breast,  never 
have  known  and 'never  can  know. 

I  throw  out  of  consideration,  therefore,  the  name  and 
the  birth-place  of  the  founder  of  this  system,  and  proceed 
to  inquire  into  his  works.  By  his  fruits  you  shall  know 
him — "  Do  men  gather  grapes  from  thorns,  or  figs  from 
thistles  ?"  His  notion  is,  that  all  disease  is  the  result  of 
a  want  of  vital  power,  producing  or  allowing  obstructions 
in  the  system,  which  nature  cannot,  from  her  weakness, 
without  assistance,  remove.  He  further  contends  that  fever 
is  not  disease,  but  the  effort — or  to  speak  more  accu- 
rately— the  evidence  of  the  effort  of  nature  to  expel  dis- 
ease ;  and  he  strengthens  this  position  by  alleging  that 
chills  are  the  enemies  of  man  resulting  in  death,  unless 
superseded  or  overcome ;  and  that  they  invariably  precede 
a  fever,  which  fever  at  the  same  time  manifests  the  se- 
verity of  the  attack,  and  the  power  and  extent  of  natural 
resistance;  that  by  the  relief  or  diminution  of  obstruc- 
tions you  aid  the  fever  and  assist  nature,  and  in  the  same 
proportion  diminish  the  power  of  the  disease:  until  finally 
the  obstruction  being  entirely  removed  by  the  reproduc- 
tion of  vital  power,  and  the  restoration  of  the  equilibrium 
of  the  system,  the  body  is  restored  to  a  sound  and  pris- 
tine state. 

Now  you   may  call   this   Thomsonism,  or   what  you 


DOCTOR  FROST'S  CASE.  219 

please,  it  smacks  much  of  philosophy ;  and  it  has  been  fol- 
lowed by  practical  results  of  the  most  beneficial  nature  to 
which  it  may  triumphantly  appeal.  The  only  objection 
to  it  seems  to  be  that  it  is  new. 

Why  this  extraordinary  objection  to  everything  like 
innovation ;  as  if  nothing  could  prove  good  unless  it  is 
encrusted  or  sanctioned  by  time?  The  celebrated  Dr. 
Harvey,  one  of  the  most  distinguished  of  the  medical 
school,  uses  language  upon  this  subject  which  is  particu- 
larly applicable.  Thus  he  speaks  :  "  By  what  unaccount- 
able perversity  in  our  frame  does  it  appear,  that  we  set 
ourselves  so  much  against  anything  that  is  new?  Can  any 
one  behold  without  scorn,  such  drones  of  physicians,  who, 
after  the  space  of  so  many  hundred  years'  experience  and 
practice  of  their  predecessors,  have  not  detected  one  single 
medicine  that  has  the  least  force  directly  to  prevent,  to 
oppose,  or  to  expel  a  continued  fever  ?  Should  any  by  & 
more  sedulous  observation,  pretend  to  make  the  least 
step  towards  the  discovery  of  such  remedies,  their  hatred 
and  envy  would  swell  against  him  as  a  legion  of  devils 
against  virtue.  The  whole  society  will  dart  their  malice 
at  him,  and  torture  him  with  all  the  calumnies  imagi- 
nable, without  sticking  at  anything  that  would  destroy 
him  root  and  branch ;  for  he  who  professes  to  be  a  re- 
former of  the  art  of  physic,  must  resolve  to  run  the  haz- 
ard of  the  martyrdom  of  his  reputation,  life  and  estate." 

It  is  a  mistake,  sir,  to  suppose — as  the  court  seem  to 
suppose,  from  their  course  of  inquiries — that  according  to 
this  system,  there  is  but  one  remedy  for  all  diseases. 

There  is  one  remedy  for  the  root  or  trunk  of  all  dis- 
eases ;  and  as  when  the  axe  is  applied  to  the  body  of  the 
tree,  the  branches  share  in  the  fate  of  the  parent  stock, 
and  are  felled  with  it:  so  when  the  obstruction  from 
which  diseases  in  their  various  phases  and  branches 
spring  is  eradicated  from  the  system,  nature  again  as- 
sumes her  empire,  and  peace  and  harmony  and  salubrity 
prevail  where  rebellion  and  discord  and  disease  had  pre- 


220  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

viously  existed.  But  there  are  seventy  different  kinds  of 
medicine  embraced  by  the  Thomsonian  materia  medica — 
possessed  of  emetic,  diaphoretic,  stimulating,  sedative  and 
other  properties — all  of  which  may  be  applied  in  judi- 
cious adaptation  either  severally  or  in  compounds,  ac- 
cording to  the  nature  of  the  disease  or  the  constitution  or 
necessities  of  the  patient. 

This  is  a  plain,  rational,  common  sense  theory ;  and 
with  the  practical  illustrations  of  its  utility  which  we 
have  supplied  from  thousands  of  living  witnesses,  it  is 
neither  to  be  contemned  or  rejected.  The  Thomsonian 
system  is  not  to  be  put  down  by  the  sneering  system — and 
especially  by  those  who  are  paid  for  sneering.  It  was 
never  the  design  of  the  great  Creator  of  Earth  and 
Heaven — if  such  a  worm  as  I  am  may  be  allowed  to 
imagine  what  were  the  inscrutable  designs  of  the  Om- 
niscient— that  recourse  should  be  had  to  the  vast  and  in- 
numerable compounds  of  mineral,  vegetable  and  poison- 
ous substances,  embraced  by  the  materia  medica  of  the 
regular  faculty,  in  order  to  effectuate  the  cure  of  his 
creatures. 

Indians  live  to  a  great  age,  even  though  subjected,  as 
they  are,  to  the  greatest  exposure.  Their  only  medicines 
are  herbs.  Sickness  with  them  is  less  fatal  than  with  us ; 
and  this  would  appear  to  lead  to  the  conclusion  that 
more  patients  die  of  the  doctor  than  the  disease.  But  if 
this  were  not  true,  if  death  were  more  rife  among  them, 
they  at  least  are  not  subjected  to  a  living  and  prolonged 
death  ;  as  is  the  result  of  calomel,  arsenic,  antimony,  and 
other  mineral  poisons. 

But,  say  our  adversaries,  if  the  system  of  Thomson  be 
good,  yet  "lobelia"  is  possessed  of  poisonous  properties; 
and  therefore  may  be  supposed  in  this  instance  to  have 
caused  death.  This  is  strange  and"  inconsistent  doctrine, 
coming  from  that  quarter.  But  it  is  as  unsound  and 
untrue,  as  st'range  and  inconsistent;  there  is  not  a  man 
of  them  that  has  ever  known  it  to  produce  death ;  and  I 


DOCTOR  FROST'S  CASE.  221 

challenge  the  district  attorney,  and  his  colleague  to 
boot,  to  turn  to  any  portion  of  the  testimony  by  which 
it  so  appears.  Doctor  Smith,  of  Rochester,  is  the  only 
one  of  all  the  witnesses  who  approaches  anything  like 
such  a  result,  and  he  states  that  he  knew  it  to  have 
killed  a  lady  who  at  first  had  a  slight  fever,  and  who 
told  him  she  took  lobelia  from  a  bottle,  which  he,  the 
doctor,  saw  on  the  table. 

In  the  first  place  this  is  no  testimony  at  all,  as  the 
court  intimated,  being  mere  hearsay  at  the  best.  In  the 
second  place,  it  was  the  communication  of  a  deranged 
woman,  though  in  a  supposed  lucid  interval ;  and  in  the 
third  place,  the  doctor  saw  the  patient  in  the  close  of  her 
life ;  appears  to  know  very  little  of  her  disease  ;  and,  of 
consequence,  relies  more  upon  fancy  than  upon  facts  for 
his  conclusions — of  all  medical  or  judicial  tests  the  most 
feeble  and  unsatisfactory. 

Now,  having  shown  the  state  of  the  patient  and  the 
probable  nature  of  the  disease :  what  were  the  prescrip- 
tions and  the  course  of  treatment  adopted  by  the  defend- 
ant, as  in  distinct  proof  upon  this  occasion  ?  For  the 
regular  consecutive  course  let  us  refer  to  that  testimony 
to  which  we  must  all  delight  to  turn — the  testimony  of 
Elizabeth  Frost.  [A  portion  of  the  testimony  of  Miss 
Frost,  describing  symptoms  and  applications  was  here 
read.] 

Thus  it  appears,  that  repeated  doses  of  "  composition 
tea,"  as  it  is  called,  made  up  of  harmless  ingredients, 
were  administered  to  him  on  the  evening  of  the  day 
upon  which  he  entered  the  establishment,  and  that  he  was 
then  put  to  bed.  The  next  day  he  took  more  tea,  and 
took  a  vapor  bath,  which  was  continued  for  about  ten. 
minutes,  tea  being  administered  during  its  continuance  ; 
then  he  was  carefully  covered  with  blankets — conveyed 
to  the  bed,  and  shortly  after  took  a  dose  of  lobelia,  and 
in  fifteen  or  twenty  minutes  after  that,  another  dose. 
Occasionally  he  seemed  relieved,  and  then  again  re- 


222  FORENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

lapsed.  On  Monday  "  a  powerful  dose,"  as  it  has  been 
called,  of  lobelia  was  given ;  this  for  a  time  relieved 
him.  On  the  evening  after  the  arrival  of  Dr.  Davids 
and  Ulysses  French,  he  got  worse ;  and  it  would  seem 
from  that  time  until  Tuesday  evening,  when  he  died, 
the  disease  continued  to  increase.  On  the  afternoon  of 
the  last  clay,  the  symptoms  seemed,  however,  more  favor- 
able, and  a  gentle  perspiration  suffused  the  whole  frame. 
There  seemed  to  be  a  point  where  nature  made  one  final 
effort  to  throw  off  disease  with  some  signs  of  success — 
when,  unluckily,  owing  to  the  fears  of  the  brother, 
Dr.  Cheeseman  was  called  in.  If  the  course  pursued 
by  Dr.  Cheeseman  has  been  correctly  stated  by  the 
witnesses ;  and  if  my  views  of  medical  treatment  be 
correct ;  there  was  much  in  it  to  condemn.  1  will  con- 
sider its  excuse  presently.  The  clothes  were  thrown  off ; 
the  last  applications  removed  ;  the  fire  extinguished  ;  the 
windows  thrown  open ;  the  doors  fanned  ;  and  an  instan- 
taneous and  violent  change  thus  produced  in  the  tempera- 
ture— the  body  exposed  to  the  influence  of  the  air — the 
night  damp  and  bleak. 

"We  do  not  mean  to  say  that  this  course  was  adopted 
by  Dr.  Cheesemau  from  any  malevolent  or  uncharitable 
purpose.  Heaven  forbid !  But  I  will  ask  whether  the 
sudden  check  of  perspiration,  attendant  upon  such  treat- 
ment, and  operating  upon  a  weak  frame  already  having 
suffered  from  two  relapses,  must  not  necessarily  have 
been  followed  by  pernicious  effects.  I  have  always 
been  so  taught,  and  appeal  to  the  medical  faculty,  for 
the  correctness  of  the  instruction.  Dr.  Manly,  however, 
informs  us,  that  although  ordinarily  the  check  of  per- 
spiration may  be  dangerous,  yet  it  is  not  so  much  so, 
if  at  all  so,  while  the  patient  is  under  the  influence  of 
medicine ;  inasmuch — as  I  understood  the  learned  doc- 
tor— as  the  medicine  forms  a  counteracting  power,  which 
resists  external  attacks  upon  the  system.  There  is  some 
philosophy  in  this — but  might  not  even  the  conflict  be- 


DOCTOR  FROST'S  CASE.  223 

tween  the  medicine  and  the  atmosphere  prove  fatal  to 
the  patient,  where  life  is  reduced  to  so  low  an  ebb,  as  in 
the  case  of  Tiberius  G.  French  ? — in  such  a  condition — 

"That  death  and  nature  did  contend  about  him, 
Whether  he  lived  or  died." 

They  say,  however,  that  the  facts  were  not  so — that 
Dr.  Cheeseman  did  not  expose  the  body,  and  subject 
it  to  the  influence  of  a  chilly  atmosphere.  It  is  true 
there  is  some  slight  variance  in  the  testimony ;  but  there 
is  substantial  consistency,  with  circumstantial  variety, 
which  ever  characterize  the  highest  order  of  evidence. 
Dr  Metcalf,  Miss  Rae  and  Mrs.  Frost,  although  they 
refer  in  their  testimony  to  different  parts  in  this  last 
sad  scene  (each  one  having  witnessed  but  a  portion  of 
it),  in  the  effect  of  their  combined  testimony  leave  no 
question  upon  this  subject.  Pardon  me  while  I  show 
you  how  entirely  they  agree.  Dr.  Metcalf  says,  that 
when  Dr.  Cheeseman  came  in  first,  he  threw  off  the 
coverlet,  opened  the  doors,  and  went  away  after  exam- 
ining the  patient's  tongue ;  that  when  Dr.  Cheeseman 
returned  with  Dr.  Sweet,  he  threw  off  all  the  bed  cover- 
ing, raised  the  sheet  to  examine  the  stomach  of  the 
patient,  and  permitted  him  so  to  remain  for  an  improper 
length  of  time — the  windows  were  opened  front  and 
back,  as  were  the  room  doors  and  hall  doors.  Before 
Dr.  Cheeseman  came  in,  the  witness  examined  the  patient 
and  found  him  in  a  gentle  perspiration — equally  diffused 
all  over — and  thinks,  to  check  a  perspiration  in  this  way 
must  prove  fatal. 

Miss  Rae  states,  that  when  the  bell  rang  she  let  in  Dr. 
Cheeseman  and  Mr.  French — she  opened  the  chamber  door 
half  way — Dr.  Cheeseman  opened  it  all  the  way — went 
to  bedside,  said  he  was  afraid  the  patient  was  too  warm 
— threw  off  the  top  comforter.  Dr.  Cheeseman  then 
went  for  Dr.  Smith,  and  in  about  fifteen  minutes  they 
came  in.  Dr.  Cheeseman  then  took  all  the  clothes  off 


224  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

of  patient  down  to  the  feet — the  sheet  was  then  raised 
and  the  chest  of  patient  was  exposed.  Dr.  Cheesemau 
then  ordered  witness  to  put  out  the  fire ;  he  then 
ordered  the  windows  to  be  let  down,  which  was  accord- 
ingly done.  Dr.  Sweet,  and  Dr.  Cheeseman  then  re- 
tired, and  subsequently  Dr.  C.  came  in  and  ordered  the 
warm  applications  to  be  removed  from  the  feet — the 
back  and  front  windows  were  open.  The  witness  then 
withdrew,  and  upon  coming  in  again  found  the  patient 
in  a  chill,  and  in  a  few  minutes  after  he  was  seized 
with  convulsions  of  which  he  died. 

Mrs.  Phebe  Frost,  states,  that  she  was  present  on 
the  evening  French  died — found  him,  upon  examina- 
tion, in  a  moderate  perspiration — that  after  Dr.  Cheese- 
man came  in  the  room  was  cool — the  doors  were  opened : 
they  appeared  to  be  about  to  strip  the  patient  and  the 
witness  turned  her  back.  It  was  a  damp,  foggy  evening — 
the  room  was  made  too  cool  for  a  person  in  health — 
shortly  after  patient  went  into  spasms. 

Some  attempt,  it  is  true,  has  been  made  to  contradict 
these  witnesses,  but  unavailingly.  It  will  be  found  that 
they  are  entirely  corroborated  by  those  who  profess  to 
oppose  them. 

One  thing  is  certain  from  the  testimony — and  it  ac- 
cords with  my  theory,  and  with  the  Thomsonian  system — 
that  a  chill  immediately  followed  this  exposure,  and  that 
chill  terminated  in  death.  This,  at  least,  is  a  fact ;  and 
facts  are  said  to  be  stubborn  things.  You  have  here  pre- 
sented to  you,  cause  and  effect — a  cause  that  ceases  to  be 
doubtful  from  the  nature  of  the  effect,  and  the  rapidity 
with  which  it  followed.  The  abstract  hypotheses,  there- 
fore, of  distinguished  members  of  the  faculty,  though  re- 
spectable for  their  authority,  lose  all  their  charm,  when 
tested  by  actual  observation  and  experience — yet  who 
shall  say,  notwithstanding  these  facts,  that  Dr.  Cheese- 
man killed  the  patient. 


DOCTOR  FROST'S  CASE.  225 

We  say  that  he  acted  up  to  the  best  of  his  skill  and 
ability.  If  mistaken,  the  motive  should  justify  the 
means.  It  would  indeed  have  been  a  proud  triumph  of 
science,  had  the  learned  physician  redeemed  the  deceased 
from  the  cold  embrace  of  death. — But  is  he  to  be  cen- 
sured or  indicted  for  his  failure — certainly  not.  "  In 
great  attempts  'tis  glorious  e'en  to  fail."  And  what 
attempt  is  greater  than  that  which  is  directed  to  the 
preservation  of  human  life. 

But  do  you  not  perceive,  gentlemen  of  the  jury,  that 
all  that  is  thus  justly  said  in  behalf  of  Dr.  Cheeseman, 
operates  equally  in  defence  of  Dr.  Frost.  No  man  doubts 
but  that  his  remedies  were  prescribed  with  a  view  to 
the  restoration  of  his  patient. — Suppose  those  remedies 
failed ;  suppose  even  they  produced  death ;  is  there 
nothing  (in  a  criminal  case)  in  the  motive,  in  the  design, 
with  which  they  are  administered,  calculated  to  protect 
the  defendant.  If  not,  wo  be  unto  all  the  professors  of 
the  healing  art.  The  terrors  of  their  responsibility  shall 
unfit  them  for  its  due  discharge,  and  they  shall  either  in 
spite  of  fate,  save  the  life  of  their  patient,  or  sacrifice 
their  own.  Let  that  be  once  understood  to  be  the  law, 
and  whole  hecatombs  shall  perish,  without  one  helping 
or  alleviating  hand.  Let  that  once  be  understood  to  be 
the  law,  and  then  show  the  diploma,  that  shall  prove  a 
panoply  against  indictments  like  this.  Upon  this  branch 
of  the  argument  I  am  the  advocate  of  all  physicians, 
without  regard  to  systems.  Syslems,  will  ascertain  their 
respective  levels,  from  unequivocal  manifestations  of  pub- 
lic opinion — but  the  principle  I  here  contend  for,  is  salu- 
tary, and  necessary  to  all — is  salutary  and  necessary  to 
the  public,  upon  which  all  must  depend  for  support.  It 
is  not  as  I  have  said,  by  persecution,  that  the  one  is  to 
be  exalted  or  the  other  degraded.  When  did  genuine 
talent,  or  conscious  worth  descend  to  means  like  this  ? 
During  the  trial  of  this  very  cause  ;  one  of  the  brightest 
luminaries  of  medical  science,  in  the  person  of  the  ven- 

15 


226  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

erable  and  lamented  PHYSICK,  has  sunk  beneath  the  hori- 
zon of  the  world,  to  rise,  it  is  to  be  hoped,  in  brighter 
and  in  purer  realms. — Whence,  while  among  us,  was  his 
lustre  derived  ? — not  from  breaking  down,  but  from  build- 
ing up — not  from  crushing  his  supposed  inferiors  (for  if 
that  were  the  case,  his  foot  would  have  been  planted 
upon  the  necks  of  nine-tenths  of  his  profession),  but  from 
assisting  and  stimulating  and  enlightening  all,  and  bor- 
rowing assistance  and  stimulus,  and  light  from  all.  The 
truly  great  man  becomes  "  in  men's  despite  a  monarch." 
He  is  not  merely  illustrious  from  the  insignificance  of 
those  by  whom  he  is  surrounded  ;  but  he  shines  in  re- 
flected as  well  as  original  brightness. 

If  the  medicine  produced  death — which  no  'human 
being  has  said,  or  can  say,  though  you  are  asked  to 
draw  that  inference  from  the  evidence — then  and  then 
only  arises  the  question — 

Secondly. — Was  there  gross  ignorance — or  culpable 
neglect  on  the  part  of  the  defendant — Lata  culpa — or 
Crassa  negligentia  in  the  language  of  the  law. 

If  the  medicine  did  not  produce  death — or  expedite 
death — ignorance  in  administering  it,  is  no  subject  of 
punishment  under  this  indictment ;  and  if  it  did  pro- 
duce death,  and  there  was  competent  skill  in  adminis- 
tering it,  it  is  but  mischance,  and  certainly  no  felony  ; 
the  design  being  salutary.  I  repeat  it,  this  doctrine  is 
essential  not  only  to  the  doctor — but  to  the  patient— - 
it  is  doctrine  founded  in  universal  policy.  If  a  physi- 
cian is  to  answer  for  the  effect  of  his  medicines ;  and  if 
his  skill  is  to  be  determined  by  the  life  or  death  of  his  pa- 
tient ;  medical  science,  as  it  has  always  been  admitted  to 
be  the  most  uncertain  of  all  sciences,  so  will  it  be  the  most 
dangerous  ;  and  not  a  man  among  the  regular  or  irregu- 
lar practitioners,  is  safe.  This  is  a  subject  to  be  reflected 
upon :  no  man  will  be  willing  to  place  his  reputation  and 
liberty  in  jeopardy,  however  urgent  the  occasion,  by  pre- 
scribing in  a  dangerous  disease  in  which  prescriptions 


DOCTOR  FROST'S  CASE.  227 

are  most  required,  if  this  is  to  be  the  standard  by  which 
his  practice  is  to  be  tested  and  adjudged.  It  is,  to  be 
sure,  the  case  only  of  Richard  Frost  to-day  ;  but  it  shall 
exhibit  a  more  shining  mark  to-morrow.  The  result  is 
that  patients  will  be  allowed  to  die  without  an  effort 
to  save  them ;  unless  the  law  shall  be  considered  as 
involving  the  further  absurdity  of  coercing  medical  at- 
tendance, at  the  same  time  that  it  punishes  its  want  of 
success.  The  pernicious  operation  of  this  doctrine  would 
be  measureless:  in  future  no  old  woman  will  dare  to 
give  a  dose  of  camomile  tea,  for  fear,  that  by  the  re- 
motest probability  it  may  produce  death — or  death  may 
ensue.  Nay,  it  would — to  refine  upon  the  doctrine — be 
tantamount  to  suicide  to  take  medicine  yourself,  without 
the  intervention  of  medical  aid :  if  death  were  to  be  the 
consequence,  it  would  be  felo  de  se  ;  and  the  rites  of 
Christian  burial  should  be  withheld,  and  in  the  place 
thereof 

"  You  should  in  ground  unsanctified  be  lodged 
Till  the  last  trumpet." 

I  have  contended  under  the  first  proposed  point  of 
inquiry,  that  the  medicine  did  not  produce  death  ;  and 
if  it  did,  I  contend  under  the .  second  head  of  my  argu- 
ment, that  it  was  administered  with  competent  skill, 
and  care.  Not  skill  and  care  according  to  an  opposing 
system  ;  which  deems  nothing  skilful  without  a  diploma 
— nothing  careful  that  does  not  conform  to  its  own 
practice.  To  be  skilful,  according  to  the  views  of  some, 
you  must  give  poisons  ;  and  to  be  careful,  you  must  pay 
your  patients  flying  visits  only — and,  at  least,  be  cer- 
tain to  be  paid  beforehand.  In  this  sense  Dr.  Frost  has 
neither  skill  nor  care.  His  medicines  were  harmless — 
he  remained  almost  constantly  by  the  bedside  of  his 
young  friend,  and  so  far  from  exacting  payment  in  ad- 
vance, the  only  compensation  or  reward  for  his  services 
that  he  has  ever  received — is  THIS  PROSECUTION  ! — It  is, 


228  FORENSIC    SPEECHES   OF   DAVID    PAUL   BROWN. 

to  be  sure,  more  than  he  expected,  but  gratitude  is  boun- 
tiful ! — it  is  more  thau  he  deserved,  but  generosity  is 
munificent ! 

To  resume  the  consideration  of  this  point — there  was, 
I  maintain,  neither  ignorance  nor  neglect.  His  educa- 
tion and  his  prior  practice  were  such  as  to  authorize  a 
conscientious  man  to  administer  medicine.  No,  say  our 
adversaries,  "  he  was  originally  a  locksmith !"  Suppose 
he  was,  does  that  render  him  less  competent — with  fair 
opportunities  of  instruction — of  understanding  the  wards, 
and  intricacies  and  mysteries  of  the  physical  system? 
Many  a  locksmith  might  make  a  physician,  though,  from 
the  specimen  afforded,  it  is  certainly  not  every  physi- 
cian that  would  make  a  locksmith.  "  Honor  and  shame 
from  no  condition  rise."  No  rational  man  will  pretend 
to  compare  the  science  of  medicine  with  that  of  the  law, 
in  point  of  the  requisite  diversified  accomplishments  ;  and 
yet  I  can  recall  to  your  honor's  memory  one  of  many 
instances  in  which  a  poor  unlettered  country  boy,  hav- 
ing driven  his  load  of  hay  into  the  city  of  Philadelphia, 
and  being  attracted  by  youthful  curiosity  or  driven  by 
force  of  character,  into  the  courts  of  justice,  was  so  cap- 
tivated by  forensic  eloquence  as  to  abandon  his  rustic 
vocation  and  devote  himself  at  once  to  the  law.  In  a 
few  short  years  where  do  we  find  him  ?  On  the  very 
pinnacle  of  professional  glory,  looking  down  upon  those 
who,  standing  for  fame  on  their  forefather's  feet  had, 
presumed  to  look  down  upon  him.  That  man  was  Wil- 
liam Lewis — a  profound  lawyer — an  unequalled  advocate. 

Recorder. — I  knew  him  well,  and  he  merited  all  you 
have  said. 

Well  then,  sir,  let  us  not  be  taunted  with  the  lock- 
smith. Upwards  of  five  years  ago,  Dr.  Frost  commenced 
his  preparatory  studies.  He  directed  his  attention  to 
various  medical  authors,  and  at  length  became  a  student 
under  Dr.  Sweet,  an  experienced  physician  connected 
with  the  Thomsonian  system.  After  continuing  in  the 


DOCTOR  FROST'S  CASE.  229 

office  of  his  preceptor  for  about  a  year,  he  opened  an  in- 
firmary himself;  and  for  three  years  and  more  has  been 
in  an  active  and  successful  practice — I  think  I  may  say 
successful,  for  it  does  not  appear  that  he  has  lost  a  single 
patient.  How  many  he  has  saved,  this  court  room  shall 
testify.  Ignorance  is  not  to  be  inferred  from  the  want 
of  a  diploma,  or  the  limited  extent  of  a  library.  His 
great  study  was  the  book  of  Nature — 

An  institute 

Of  laws  eternal — whose  unaltered  page 
No  time  cau  change — no  copier  can  corrupt. 

Practice  and  observation  were  his  study,  experience  his 
preceptor — and  are  all  these  to  be  broken  down,  in  order 
that  mere  theory  may  be  kept  up  ?  But  let  us  cast  an 
eye  at  the  evidence  his  career  affords. 

Dr.  Metcalf,  who  has  been  a  physician  for  upwards 
of  ten  years,  is  of  opinion  that  the  course  pursued  by 
Dr.  Frost,  as  he  understood  it,  was  judicious;  and  he 
also  states  the  character  of  Dr.  Sweet  (with  whom  Frost 
studied)  for  skill  and  science ;  and  the  course  of  examina- 
tion to  which  candidates  for  admission  to  practice  are 
subjected  before  the  board  of  medical  censors. 

Leonard  Kirby  states  the  case  ot  several  cures  of  scar- 
let fever  in  his  family  by  Dr.  Frost,  some  years  ago. 

Andrew  Lockwood  lost  two  children  by  measles  and 
scarlet  fever,  while  under  the  treatment  of  regular  phy- 
sicians. Subsequently  two  others  were  taken  with  the 
same  diseases,  and  despairing  of  the  regular  practice, 
Dr.  Frost  -was  sent  for,  and  both  the  little  sufferers  were 
speedily  restored  to  health. 

Valentine  Kirby  testifies,  that  he  has  employed  Frost 
repeatedly  in  his  family — for  his  wife,  his  children  and 
himself.  In  one  instance  Dr.  Anderson  attended  a  child 
for  inflammation  of  lungs — it  got  worse — he  thought  it 
would  not  live,  and  called  in  Dr.  Frost.  Under  Frost's 
treatment  the  child  got  better.  The  regular  physician 


230  FORENSIC    SPEECHES   OP   DAVID   PAUL    BROWN. 

afterwards  called  and  said  "continue  the  drops."  He 
didn't  know  Frost  had  l>een  there.  Instead  of  continu- 
ing the  drops,  he  continued  the  Thomsonian  system, 
which  cured  the  child,  and  the  regular  physician  took: 
the  credit  of  it. 

I  say  then,  there  is  no  manifestation  of  culpable  neg- 
lect, or  gross  ignorance.  The  suggestion  of  rashness 
which  may  be  embraced  either  by  the  term  "  neglect,"  or 
"  ignorance,"  should  be  weighed  with  great  caution — in 
the  language  of  Judge  Brice  in  the  Maryland  trial, 
which  has  been  more  than  once  referred  to :  "  Physi- 
cians are  often  obliged  to  exercise  a  discretion  which  to 
by-standers  and  unskilful  persons  may  appear  rash  and 
unfeeling;  but  which  may,  nevertheless,  be  dictated  by 
the  soundest  judgment  and  the  kindest  feelings  toward 
the  patient,  and  an  anxious  desire  to  promote  his  re- 
covery. To  use  the  language  of  Lord  Hale,  '  God  forbid 
that  a  failure  should  subject  the  unfortunate  practitioner 
to  a  criminal  prosecution,  when  he  has  done  the  best  he 
could  to  effect  a  cure.'  * 

Thus,  sir,  I  have  considered :  first,  the  question, 
whether  the  medicines,  or  the  course  of  treatment 
combined,  produced  the  death  of  the  deceased  ;  and 
in  the  second  place,  I  have  bestowed  some  attention 
upon  the  allegation  of  gross  ignorance  and  culpable 
neglect.  If  the  prosecution  has  not  succeeded  in  es- 
tablishing to  the  entire  satisfaction  of  the  jury,  the 
affirmative  of  both  propositions,  it  is  impossible,  legally 
speaking,  that  the  defendant  can  be  convicted : — that  is, 
if  the  treatment  did  not  produce  death,  however  ignorant 
or  unskilful  or  neglectful  it  may  have  been,  no  conviction 
can  ensue.  For  let  it  be  remembered,  that  the  ignorance 
and  neglect  are  connected  with  the  treatment ;  and  not 
relied  upon  as  substantive  or  independent  grounds  of 
accusation. 

There  is  another  matter,  that  although  I  trust  it  is  not 
necessary  to  be  enforced  upon  your  minds,  in  a  case  like 


DOCTOR  FROST'S  CASE.  231 

this,  yet  it  is  never  utterly  to  be  lost  sight  of  in  any 
criminal  case.  It  is  this.  That  in  order  to  render  a  ver- 
dict of  conviction,  your  minds  must  be  relieved  from 
everything  like  reasonable  doubt ;  and  that  doctrine  is 
applicable,  not  only  to  the  interpretation  of  the  facts,  but 
to  the  conclusions  of  law.  It  is  founded  in  mercy,  it  is 
true,  but  is  not  unmixed  with  justice,  and  a  due  regard 
to  the  protection  of  the  community.  It  is  better,  much 
better,  that  ninety-nine  guilty  men  should  escape,  thau 
that  one  who  is  innocent  should  suffer. 

The  law  does  not  require  a  sacrifice :  it  punishes,  it  is 
true,  where  guilt  is  clearly  shown  ;  but  it  is  not  that  jus- 
tice delights  in  the  groans  of  the  victim,  but  that  society 
may  be  preserved  from  the  influence  of  evil  example,  and 
protected  from  the  encroachments  of  vice.  With  the 
benefit  of  these  reflections,  it  will  be  for  you,  the  sworn 
twelve,  to  say  how  far  it  comports  with  your  sense  of 
duty  to  pronounce  a  verdict  of  guilty  against  the  defend- 
ant, now  upon  his  trial.  My  task  is  accomplished. 
Yours,  and  it  is  a  much  more  important  one,  as  it 
affects  the  character  and  condition  of  the  defendant, 
remains  to  be  fulfilled.  It  is  for  you  to  restore  him  to 
his  reputation,  to  his  family,  to  his  hopes — neither  of 
which  he  has  justly  forfeited.  It  is  for  you  to  return  him 
to  the  affection  of  a  sister ;  to  the  arms  of  an  aged  and 
respectable  mother;  or -to  consign  him  to  the  cells  of  a 
penitentiary,  and  thereby  not  only  blast  his  reputation, 
but  also  to  destroy  all  those  who  cling  about  him,  for 
their  consolation  and  support.  This,  I  may  therefore  be 
allowed  to  say,  is  a  momentous  question.  It  is  jonr  pro- 
vince to  decide  it — and  for  its  decision,  you  are  responsi- 
ble to  yourselves,  your  country  and  your  God. 


During  the  trial  of  the  preceding  case,  in  which  all  the 
medical  faculty  of  New  York  were  enlisted  against  the 
professors  of  the  Thomsonian  system,  the  newspaper  re- 


232  FORENSIC    SPEECHES    OF   DAVID    PAUL   BROWN. 

porters  took  a  very  active  part  in  behalf  of  the  prosecu- 
tion, and  carried  their  zeal  so  far  as  to  supply  questions 
to  the  district  attorney  and  his  colleagues,  and  thereby 
interfered  most  improperly  with  the  propriety  and  dignity 
of  a  judicial  tribunal ;  this  interference  at  last  became  so 
gross  as  to  compel  Mr.  Brown,  though  most  reluctantly, 
to  bring  the  subject  to  the  public  notice  of  the  court, 
which  he  did  in  the  following:  brief  address : — * 


Pardon  me,  may  it  please  your  honor,  for  interrupt- 
ing the  proceedings — I  must  be  pardoned  for  I  speak 
under  an  irresistible  impulse,  which  would  seem  to  carry 
with  it  its  own  excuse.  I  trust  I  am  neither  "splenitive 
nor  rash  ;"  but  that  man  who  can  endure  the  indecorum 
of  such  an  examination  as  this,  in  a  court  of  justice, 
must  be  lost  to  all  sense  of  right — to  all  obligations  of 
duty,  to  all  professional  or  personal  respect.  I  have  en- 
dured it  until  patience  is  no  longer  a  virtue;  and  now  I 
feel  myself  imperatively  called  upon  to  express  my  un- 
qualified reprobation  of  the  course  thus  pursued.  "What 
a  scene  is  this !  what  a  sorry  sight  is  here  presented !  a 
respectable  young  man  placed  at  your  bar  upon  a  charge 
of  felonious  homicide,  surrounded  by  his  parents,  by  his 
relatives,  his  anxious  and  sympathetic  friends,  all  ab- 
sorbed in  speechless  anxiety ;  while  arrayed  on  the  side 
of  the  prosecution,  stands  the  district  attorney,  aided 
by  his  learned  associates,  and  supported  by  hosts  of 
willing  and  eager  witnesses,  standing,  as  it  were,  "  like 
grayhounds  in  the  slip."  To  all  this,  sir,  I  take  no  objec- 
tion ;  it  is  sanctioned  by  the  law ;  and  the  legitimate  ter- 
rors of  the  law,  we  must  be,  and  we  are  prepared  to  meet. 
Yet  is  not  all  this  enough  ! — not  only  is  the  witness  com- 
pelled to  submit  to  a  rigid  examination  by  the  counsel ; 
but  scores  of  learned  and  medical  professors,  desert  for  a 
time  their  own  science,  and  here  publicly  enlist  them- 

«  From  Report  of  the  Trial. 


DOCTOR  FROST'S  CASE.  233 

selves,  to  the  disgrace  of  justice,  beneath  the  bloody  flag 
of  this  prosecution.  From  every  quarter  of  this  vast  hall, 
the  constables  and  the  tipstaves,  and  the  bystanders  are 
put  into  requisition,  for  the  purpose  of  forwarding  written 
communications  and  interrogatories  to  the  law  officers  of 
the  district.  Is  this  dignified  ? — is  it  decent  ? — is  it 
honest  ?  Nay,  more,  sir, — following  up  this  iniquitous 
example,  and  converting  the  liberty  of  the  press,  into  the 
licentiousness  of  the  press,  (the  heart  speaks,  and  I  will 
not  restrain  it) — the  very  stenographers  and  reporters — to 
whose  industry  and  skill  the  community  is  indebted  for 
the  daily  notices  of  this  trial — losing  sight  of  the  limits 
of  their  privilege,  also  lend  their  important  aid  to  the 
learned  counsel,  and  supply  them  with  new  inquiries 
when  their  own  genius  may  flag.  This  is  bad — very 
bad,  but  it  is  not  the  worst  feature  in  this  anomalous 
course.  Those  stenographers  are  to  report  their  own  ques- 
tions— they  are  to  report  the  answers  to  those  questions ; 
both  questions  and  answers  are  subject  to  the  influence  of 
preconceived  partizan  opinions  upon  the  subject  of  in- 
quiry ;  and  thus  in  to-morrow's  account  of  this  trial  in 
the  public  journals,  every  thing  will  be  exhibited  in  the 
most  unfavorable  light  for  the  defendant:  the  printer  is 
the  opposite  counsel.  If  the  prisoner  is  to  be  offered  up 
as  a  victim,  commit  him  at  once  to  the  mob ;  hand  him 
over  to  his  concealed  or  avowed  enemies  ;  and,  instead  of 
subjecting  him  to  these  lingering  torments,  let  the  work 
of  destruction  at  once  be  accomplished.  But  if  this  be  a 
trial — if  these  be  the  hallowed  precincts  of  justice — if  the 
law,  or  life,  or  liberty  be  more  than  a  name ;  let  not,  I  be- 
seech you,  let  not  the  record  of  this  important  issue  be 
stained  and  blotted  by  irregularities  like  these — at  all 
events,  may  it  please  the  court,  their  history  shall  bear 
upon  its  face  my  humble,  but  prompt  and  unequivocal 
protest. 

I  am  aware,  may  it  please  the  court,  that  this  is  a  bold 
step  upon  my  part :  in  behalf  of  an  innocent,  and  an  op- 


234  FORENSIC    SPEECHES   OF   DAVID    PAUL   BROWN. 

pressed  man,  it  becomes  me  to  be  bold — and  I  should  be 
a  traitor  to  my  trust — to  myself — and  to  my  God,  were  I 
capable  of  weighing  mere  considerations  of  personal  favor 
or  advancement,  in  opposition  to  the  solemn  convictions 
of  conscientious  duty.  If  I  enjoy  the  applause  of  my 
own  feelings,  I  shall  not  require  that  of  the  world — if  I 
am  free  from  self-reproach — the  reproach  of  others  will 
lose  all  its  terrors. 

Here  Mr.  Phenix  rose  and  contended  that  he  not  only 
had  the  right  to  the  assistance  of  the  medical  gentlemen, 
and  the  reporters,  but  of  every  individual  in  the  room, 
who  might  think  proper  to  communicate  information 
upon  the  subject  of  the  trial,  or  to  propound  inquiries — 
and  he  concluded  by  observing,  that  the  objection  of  the 
defendant's  counsel  arose  from  fear  that  the  imperfections 
of  the  Thomsonian  system,  and  the  guilt  of  the  defend- 
ant, should  become  matters  of  notoriety. 

Mr.  Brown  resumed — Sir,  I  am  not  afraid  of  any  legal 
course — it  is  a  departure  from  the  law  that  I  deprecate, 
and  fear.  There  is  nothing  in  the  talents  of  the  counsel, 
great  as  they  are — there  is  nothing  in  the  prosecution 
rightly  conducted,  or  in  "twenty  times  its  stop,"  that 
can  appall  me.  Far,  very  far  from  it ;  and  I  beg  leave  to 
tell  the  learned  gentleman,  who  taunts  us  with  our  fears, 
that  he  will  find  much  more  serious  cause  for  alarm,  by 
looking  closely  at  home.  And  I  tell  him  further,  sir,  so 
far  am  I  from  deeming  this  cause  in  peril,  that  I  possess 
the  power  at  any  moment — here  in  the  city's  eye,  of 
strangling,  *|yes  strangling  this  fondly  cherished  offspring, 
of  whose  infallibility  he  boasts. 

The  court  decided  that  the  district  attorney  had  a 
right  to  call  in  the  aid  of  scientific  men,  but  that  it  would 
be  a  most  indecent  exhibition  for  any  one  to  pass  a  writ- 
ten question — that  "  such  a  proceeding  would  be  a  most 
improper  administration  of  justice." — The  recorder  spoke 
with  considerable  warmth,  and  indirectly  rebuked  the 
medical  faculty  for  their  disgraceful  conduct. 


HOLMES'    CASE. 


COMMONWEALTH  v.  WILLIAM  HOLMES. 
SKETCH  OF  FACTS. 

At  the  April  Sessions  of  the  Circuit  Court  of  the 
United  States,  a  case  of  absorbing  interest  was  brought 
to  trial — it  was  a  prosecution  against  William  Holmes, 
for  the  murder  of  Francis  Askin,  and  arose  out  of  the 
following  circumstances:  The  American  ship,  William 
Brown,  "left  Liverpool  on  the  13th  of  March,  1841, 
bound  for  Philadelphia,  with  'a  crew  of  seventeen,  and 
sixty-four  passengers — Scotch  and  Irish  emigrants. 

About  ten  o'clock  of  the  night  of  the  19th  of  April, 
when  distant  two  hundred  and  fifty  miles  southeast  of 
Cape  Race,  the  vessel  struck  an  iceberg,  and  filled  so  rap- 
idly that  it  was  evident  she  must  soon  go  down.  The 
"longboat"  and  "jolly  boat"  were  lowered;  the  cap- 
tain, second  mate,  seven  of  the  crew,  and  one  passenger, 
got  into  the  jolly  boat ;  and  the  first  mate,  eight  sea- 
men [of  whom  the  prisoner  was  one,]  and  thirty-two 
passengers,  got  indiscriminately  into  the  long  boat ;  the 
remaining  thirty-one  passengers  were  obliged  to  remain 
on  board  the  ship,  which  in  an  hour  from  the  time  she 
struck  went  down,  carrying  with  her  every  person  who 
had  not  escaped  to  one  or  other  of  the  boats.  The  long- 
boat leaked,  and  all  on  board  were  in  great  jeopardy. 
The  gunwale  was  within  from  five  to  twelve  inches  of 
'the  water,  and  she  was  supposed  to  be  too  unmanageable 
to  be  saved  ;  in  a  moderate  blow  she  would  have  been, 
swamped  very  quickly. 

On  the  following  night  (Tuesday),  after  experiencing 
great  hardships  and  perils,  the  mate — finding  the  boat 
unmanageable,  and  being  in  immediate  danger  from  the 

(235) 


236  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

heavy  sea  and  floating  ice — gave  the  order,  which  con- 
signed fourteen  of  the  passengers  to  a  watery  grave ; 
among  whom  was  Askin,  to  whom  this  indictment  re- 
lated. Holmes,  the  defendant,  assisted  in  the  execution 
of  this  order,  and  his  participation  in  the  deed  was  the 
subject  of  the  indictment. 

The  trial  commenced  on  the  13th  April,  1842,  and 
terminated  with  a  verdict  of  guilty  on  the  23d  of  April. 
The  defendant  was  sentenced  to  six  months'  imprison- 
ment and  fine — which  latter  was^ remitted  by  the  Presi- 
dent, and  the  defendant  discharged  November  14th, 
1842. 

For  the  United  States. 

Messrs.  OLIVER  HOPKINSON,  GEO.  M.  DALLAS,  WM.  M. 
MEREDITH. 

For  the  Defence. 

.Messrs.  EDWARD  ARMSTRONG,  ISAAC  HAZLEHURST,  DAVID 
PAUL  BROWN. 


HOLMES'  CASE.  237 


SPEECH    J]ST    HOLMES1   CASE. 


WITH  DEFERENCE  TO  THE  COURT: 

How  wonderful  and  mysterious,  gentlemen  of  the  jury, 
are  the  vicissitudes  of  human  life.  How  frail  and  pre- 
carious are  our  best  holds  upon  human  happiness.  Man, 
the  boasted  lord  of  creation,  is  the  sport  of  every  wind 
that  blows— of  every  wave  that  flows.  He  appears  like 
the  grass  of  the  field,  flourishes  and  is  cut  down — and 
withers  ere  the  setting  sun — like  the  dews  of  the  morn- 
ing he  sparkles  for  a  brief  moment  and  is  exhaled. 
There  is  nothing  earthly  certain  but  uncertainty — there 
is  nothing  true-,  but  HEAVEN. 

What  a  salutary  practical  commentary,is  supplied  'by 
the  present  intensely  interesting  occasion,  upon  the  truth 
of  this  melancholy  doctrine.  On  the  thirteenth  day  of 
March,in  the  last  year,  a  staunch  and  gallant  ship,  with  a 
competent  commander  and  a  noble  crew,  with  sixty-five 
passengers  on  board,  sailed  from  the  port  of  Liverpool, 
destined  for  that  of  Philadelphia ;  a  destination,  alas ! 
which  was  never  accomplished. 

For  more  than  a  month,  notwithstanding  she  encoun- 
tered storms  and  tempests,  she  outrode  them  all ;  and  like 
a  thing  of  life,  held  on  her  way  rejoicing. 

On  the   19th  of  the  succeeding;  month  she  arrived  in 

O 

fairer  climes  and  enjoyed  more  propitious  gales:  but 
even  then,  when  every  heart  throbbed  with  the  antici- 
pated joy  of  a  speedy  arrival,  the  angel  of  destruction 
spread  his  broad  black  wings  above  her,  and  while 


238  FOKENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

traversing  the  ocean  with  all  sails  set,  at  the  rate  of 
ten  knots  an  hour,  she  came  into  collision  with  an  island 
of  ice,  and  in  a  moment  her  pride  was  prostrate,  and  the 
doomed  ship  was  reduced  to  an  actually  sinking  condi- 
tion, affording  scarcely  time  for  her  unhappy  inmates,  in 
the  moment  of  their  extremest  need,  to  cry  GOD  BLESS 
us.  The  ocean,  her  favored  element,  of  which  for  years 
she  had  been  the  pride,  became  her  sepulchre — and  the 
winds  that  had  borne  her  upon  many  a  prosperous  voy- 
age, sung  her  last  sad,  only  requiem.  Here  is  a  scene 
strikingly  presented,  in  which  the  theories  of  philosophy 
are  reduced  at  once,  to  a  frightful  reality. 

But  there  is  still  another  picture  to  which  I  would 
invite,  and  upon  which  I  would  fasten  your  attention. 
On  that  dreadful  night — the  crew  and  half  the  passengers 
having  taken  to  the  boats — the  agonizing  voice  of  a 
mother  is  heard  even  beyond  the  tumult  and  the  clamor, 
calling  for  the  preservation  of  her  daughter,  who  in  the 
consternation  of  the  moment  had  been  forgotten,  and  re- 
mained on  board  the  fated  ship.  In  an  instant,  you  may 
see  a  gallant,  athletic  and  powerful  sailor,  passing  hand 
over  hand,  by  dint  of  a  slender  rope,  until  he  regains  the 
vessel.  And  you  may  further  behold  him  upon  the 
quarter  deck — in  the  depth  of  the  night,  surrounded  by 
the  wild  and  wasteful  ocean — with  one  arm  entwined, 
around  a  sickly  and  half  naked  girl,  while  with  the 
other,  he  bravely  swings  himself  and  his  almost  life- 
less burthen — by  means  of  the  "  boat  tackle  falls" — from 
the  stern  of  the  sinking  ship  into  the  boat  below ;  and  at 
once  restores  the  child  to  the  open  arms  and  yearning 
heart  of  the  mother.  Yet  to-day,  I  say  it  to  the  disgrace 
of  the  law,  after  months  of  solitary  imprisonment,  you 
here  see  that  self  same  heroic  sailor  arraigned  upon  the 
odious  charge  of  having  voluntarily  and  wantonly  de- 
prived a  fellow  creature  of  his  life ;  and  THAT,  gentlemen 
of  the  jury,  is  the  charge  that  I  am  to  argue  and  you 
are  to  determine. 


HOLMES'  CASE.  239 

I  say  this  is  what  you  are  to  determine.  It  may 
not  be  inappropriate,  however,  though  certainly  not 
vital  to  this  cause,  that  I  should  ask  your  attention,  in 
passing  to  the  real  subject  in  controversy,  to  two  other 
indictments  which  stain  the  records  of  this  court,  re- 
ferring to  portions  of  the  same  transaction ;  the  first 
charging  the  defendant  with  murder,  which  the  grand 
jury  promptly  ignoramused — and  the  second,  in  the 
impotency  of  disappointed  revenge,  accusing  him  of  lar- 
ceny in  having  stolen  a  quilt,  of  the  alleged  value  of  three 
dollars,  which  charge  shared  the  same  fate.  You  can 

'  O 

form  some  idea  of  the  dignity  of  the  United  States  and 
its  value,  while  observing  how  it  has  been  cheapened 
by  itself.  This  very  quilt,  permit  me  to  remind  you, 
is  that  which  was  converted  by  Holmes  into  a  sail  for 
the  boat,  in  a  moment  of  the  extremest  peril,  in  order 
that  he  might  save  the  lives  of  those  very  beings  who 
gratefully  appeared  before  the  grand  jury  upon  the 
first  opportunity,  in  order  to  convict  their  benefactor  of 
these  imputed  crimes :  I  shall  speak  of  this  hereafter — 
for  the  present  I  merely  advert  to  it,  and  pass  at  once 
to  more  important  matters. 

In  approaching  the  consideration  of  this  case,  which 
I  do  with  pride,  and  pleasure,  and  confidence,  I  cannot 
but  express  my  regret,  to  adopt  a  military  phrase,  that 
I  am  called  into  conflict,  not  only  with  the  regular 
troops  of  the  United  States,  but  with  her  recently 
enlisted  volunteers.  I  am  sorry  that  my  gallant  friend* 
who  led  on  the  attack  so  boldly  yesterday — and  who  is 
a  legitimate  leader  everywhere — should  so  far  have  re- 
turned to  his  first  love,  as  to  desert  the  white  banner 
of  innocence  (under  which  he  has  lately  so  successfully 
fought)  to  engage  once  more  beneath  the  bloody  flag  of 
such  a  prosecution  as  this.  Since  it  is  so,  however, 
let  him  nail  that  flag  to  the  mast.  We  should  be 

•lA.  Dallas. 


240  FORENSIC   SPEECHES   OF   DAVID    PAUL   BROWN. 

happy  to  abide  by  every  principle  of  civilized  warfare ; 
but  in  a  mortal  controversy — in  a  death  struggle  like 
this — we  shall  neither  ask  nor  will  we  receive  any 
quarter. 

This  case,  in  order  to  embrace  all  its  horrible  rela- 
tions, ought  to  be  decided  in  a  long  boat,  hundreds  of 
leagues  from  the  shore,  loaded  to  the  very  gunwale 
with  forty-two  half  naked  victims ;  with  provisions  only 
sufficient  to  prolong  the  agonies  of  famine  and  of  thirst ; 
with  all  the  elements  combined  against  her ;  leaking 
from  below,  filling  also  from  above ;  surrounded  by  ice  ; 
unmanageable  from  her  condition,  and  subject  to  de- 
struction from  the  least  change  of  the  wind  and  the 
waves — the  most  variable  and  most  terrible  of  all  the 
elements.  Decided  at  such  a  tribunal,  nature — intui- 
tion— would  at  once  pronounce  a  verdict,  not  only  of 
acquittal,  but  of  commendation.  The  prisoner  might, 
it  is  true,  obtain  no  outward  atonement  for  nine  months 
of  suffering  and  of  obloquy  ;  but  he  would  at  least  enjoy 
the  satisfaction  always  to  be  derived  from  a  conscious- 
ness of  rectitude,  in  which  the  better  part  of  the  world 
sympathize,  and  in  which  it  confides. 

Alas  !  how  different  is  the  scene  now  exhibited. 

You  sit  here,  the  sworn  twelve,  the  centre  of  that 
society  which  you  represent,  surrounded  by  the  sanc- 
tions of  those  laws  which  for  a  time  you  administer — 
reposing  amidst  the  comforts  and  delights  of  sacred 
homes — directed  and  instructed  by  a  judge,  who,  being 
full  of  light  himself,  freely  imparts  it  to  all  he  ap- 
proaches— to  decide  upon  the  impulses  and  motives  of 
the  prisoner  at  the  bar,  launched  upon  the  bosom  of 
the  perilous  ocean — surrounded  by  a  thousand  deaths 
in  their  most  hideous  forms,  with  but  one  plank  between 
him  and  destruction.  What  sympathies  can  be  inspired 
by  relative  positions,  so  remote,  so  opposite  as  these  ? 

Translate  yourselves,  if  you  can,  by  the  power  of 
imagination,  to  those  scenes,  those  awful  scenes  to 


HOLMES'  CASE.  241 

which  this  proceeding  refers.  Fancy  yourselves  in  a  frail 
barque,  encompassed  by  towers  of  ice  Olympus  high, 
and  still  magnified  by  the  fear  natural  to  man  ;  exposed 
to  the  bleak  and  pitiless  winds,  surrounded  by  forty 
wretches  as  miserable  as  yourself — deepening  your  own 
afflictions  by  the  contagion  of  grief;  removed  a  hundred 
leagues  from  land,  and  still  further  removed  by  a  des- 
titution of  those  means  by  which  alone  it  could  possibly 
be  reached. 

ISTay,  further,  superadd  to  these  horrors  the  apprehen- 
sion of  famine — of  storm — bearing  assured  destruction 
on  its  wing ;  and  connect  all  these  with  the  scenes  and 
terrors  of  the  night  just  past — enough  to  appall  the 
stoutest  heart  and  overthrow  the  firmest  brain — and 
then  tell  me,  not  what  the  defendant  should  have  done, 
but  what  the  most  severe  and  rigid  would  have  done,  in 
trials  and  perils  and  calamities  like  these.  It  is  easy 
to  scorn  the  tempest  while  sporting  with  the  zephyr — 
to  laugh  at  the  ocean  while  secure  from  its  ravages  and 
horrors — to  expatiate  upon  the  harmlessness  of  ice, 
while  indulging  in  it,  perhaps  as  a  luxury— or  to  un- 
derrate famine  in  the  abundance  of  your  supplies — but 
may  that  Power  that  "  rides  on  the  whirlwind  and 
directs  the  storm,"  protect  you  against  the  sad  reality 
of  those  afflictions  which  in  their  mere  theory  are  often 
so  readily  overcome  by  your  self-secure,  cold  blooded 
and  reckless  philosophy.  Philosophy  readily  triumphs 
over  past  and  future  and  remote  ills;  but  present  and 
immediate  ills  grapple  closely  with  the  heart,  and  tri- 
umph over  philosophy. 

Let  us  now  come  to  those  facts  which  distance  and  defy 
all  the  powers  of  fancy.  Before  doing  this,  however,  you 
will  pardon  me  in  examining  the  legal  character  of  his 
charge:  First,  as  relates  to  the  act  of  Congress.  Sec- 
ondly, as  regards  the  inherent  defects  of  the  indictment. 
Thirdly,  as  respects  its  inconsistency  with  the  evidence  in 

the  cause.     I  have  for  the  present  but  a  word  to  say  upon 

16 


242  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

each  of  these  subjects,  rather  to  show  that  they  have  not 
been  overlooked,  than  with  any  intention  elaborately  to 
discuss  them. 

The  act  of  Congress  leaves  manslaughter  where  it  was 
at  common  law,  so  far  as  regards  its  definition — it  only 
modifies  its  punishment.  The  punishment  is  not  more 
than  three  years,  with  a  penalty  not  exceeding  one  thou- 
sand dollars.  You  hare  been  truly  told  by  the  opposite 
counsel  that  the  court  may  reduce  their  sentence  to  a 
merely  nominal  punishment.  That  is  the  business  of  the 
court,  however,  and  after  your  verdict  is  found,  your  in- 
fluence is  extinct.  "Whether  the  punishment  is  to  be  an 
hour  or  a  year,  it  is  an  infamous  punishment ;  and  you 
should  be  equally  cautious  in  resting  your  verdict  upon 
unquestionable  and  satisfactory  proof.  I  marvel,  indeed, 
that  my  learned  friend,  while  haranguing  you  upon  the 
enormity  of  this  offence,  should  attempt  soothing  you 
into  a  verdict  by  the  suggestion  that  it  would  probably 
be  attended  with  no  evil  to  the  defendant.  Allow  me 
to  deprecate  this  questionable  mercy — it  is  calculated,  if 
not  designed,  to  seduce  you  from  allegiance  to  your  du- 
ties. If  the  defendant  be  guilty,  he  should  meet  the 
rigor  of  the  law ;  if  innocent,  his  rights  should  not  be 
compromised  by  the  imaginary  insignificance  of  his  an- 
ticipated punishment.  I  make  no  claims  upon  your 
charity — my  appeals  are  to  your  justice. 

Now,  as  to  the  internal  defects  of  the  indictment.  The 
indictment  contains  four  counts  for  manslaughter.  That 
is,  for  unlawfully,  but  without  malice,  depriving  a  fellow- 
creature  of  his  life.  Malice  would  elevate  what  would 
otherwise  be  manslaughter,  into  murder. 

The  first  count  charges  the  homicide  on  board  of  the 
ship  "William  Brown,  belonging  to  Stephen  Baldwin. 

Th$  second — on  board  of  a  vessel,  name  unknown,  be- 
longing to  Stephen  Baldwin. 

The  third  and  fourth  are  the  same,  with  the  exception 


HOLMES'  CASE.  243 

of  Thomas  Vogel's  name  being  substituted  for  that  of 
Stephen  Baldwin's. 

Now,  these  charges  are  incompatible  with  each  other, 
and  are  calculated  to  bewilder  the  prisoner  in  his  defence. 
They  cannot  all  be  true,  and  as  there  has  been  no  election 
on  the  part  of  the  prosecution,  a  verdict  upon  all  will  in- 
volve an  inconsistency  obviously  illegal,  if  not  utterly 
fatal.  The  doctrine  of  Milton,  as  applied  to  angelic  ex- 
istences, that,  vital  in  every  part,  they  cannot,  but  "  by 
annihilation,  die,"  is  not  true  in  its  application  to  indict- 
ments. They  are  mortal  in  every  part,  and  the  destruc- 
tion of  one  part  of  a  count,  is  the  destruction  of  all  parts 
of  the  same  count.  One  count,  it  is  true,  does  not  destroy 
another  when  they  are  at  all  compatible  with  each  other, 
and  when  an  election  has  been  made ;  but  when  the 
charges  contained  in  an  indictment  are,  as  in  this  case, 
totally  inconsistent,  if  the  jury  should  find  a  verdict  of 
guilty  upon  the  indictment  generally,  it  will  be  subject  to 
a  motion  in  arrest  of  judgment,  and  it  can  never  stand. 

Lastly,  I  say,  if  the  indictment  were  unquestionable  in 
itself,  it  is  not  supported  by  the  proof.  I  say  nothing  in 
regard  to  the  error  in  the  time  stated,  which,  in  some 
cases  might  be  fatal,  but  probably  not  in  this.  The  ship, 
as  appears  by  the  evidence,  neither  belonged  to  Baldwin 
nor  Vogel,  but  to  McCrea,  who  is  not  even  referred  to. 
Baldwin,  however,  it  is  said,  held  a  claim  to  her — a  mort- 
gage upon  her  as  collateral  security.  That  does  not  im- 
prove the  case  of  the  prosecution.  Special  property  may 
be  sufficient,  but  it  must  be  special  property  accompanied 
by  possession ;  or  at  all  events  possession  itself,  actual  or 
constructive.  Suppose  a  person  were  indicted  for  com- 
mitting a  burglary  upon  the  house  of  A.  B.,  and  upon 
the  trial  it  appeared  that  the  house  was  the  dwelling  of 
E.  F.,  and  that  the  person  whose  name  was  introduced 
into  the  indictment  was  merely  the  mortgagee,  certainly 
the  charge  could  not  be  sustained  for  a  moment.  I 
merely,  for  the  present,  hint  at,  rather  than  press  these 


244  FORENSIC    SPEECHES   OF   DAVID   PAUL   BROWN. 

objections.  I  shall,  if  necessary — which  it  probably  will 
not  be — have  the  benefit  of  them  hereafter. 

We  pass  now  to  the  law  more  immediately  connected 
with  the  facts  of  this  case.  Russell,  Paley,  Rutberforth, 
Blackstone,  and,  above  all,  Lord  Bacon,  are  the  authori- 
ties upon  which  the  entire  law  of  the  case  rests. 

As  to  Puftendorf,  Grotius,  Heineccius,  and  others  who 
have  been  quoted,  with  all  their  lofty  pretensions,  they 
do  not  contain  as  much  wisdom  or  light  as  may  be  found 
upon  each  and  every  page  of  "  the  wisest  and  brightest  of 
mankind."  So  far  as  regards  the  present  subject,  they 
exhibit  more  pedantry  and  casuistry  than  either  learning 
or  common  sense. 

[The  books  referred  to  and  the  doctrine  of  self-defence, 
&c.,  were  here  discussed  at  length.] 

I  have  thus  given  you  the  law.  There  is  but  little  difii- 
culty  between  us  in  regard  to  it.  The  labor  is  in  the  ap- 
plication of  the  law. 

I  maintain  that  a  well-founded  apprehension  of  peril  to 
life,  justifies  self-defence — to  the  extent  of  destroying  the 
adversary.  The  opposite  counsel  maintain  that  the  peril 
must  be  actually  inevitable.  This  I  deny,  and  say  that  it 
is  enough  if  it  be  honestly  and  reasonably  supposed  to  be 
so.  An  inevitable  danger  I  don't  understand. 

They  maintain  that  the  peril  must  be  not  only  inevi- 
table, but  immediate.  I  answer,  it  need  be  neither ;  bat 
it  must  reasonably  be  supposed  to  be  both. 

Suppose — upon  an  indictment  for  manslaughter — a  plank 
be  measured  in  court,  with  square,  rule  and  compass,  and 
it  be  found  that  it  would  have  sustained  two  persons; 
still,  is  he,  who  in  his  terror,  supposes  it  would  not,  to  be 
liable  to  conviction  ?  Certainly  not. 

The  prosecution  contends  that  if  there  be  a  doubt  as 
to  the  inevitable  peril,  the  defendant  is  to  be  convicted. 
I  say  it  is  presumed  to  have  been  considered  inevitable, 
from  the  fact  itself;  there  being  no  pretence  of  animos- 


HOLMES'  CASE.  245 

ity,  but  clear  evidence  of  the  greatest  kindness  and  sym- 
pathy. 

They  say — that  if  the  danger  were  inevitable,  still  the 
defendant  had  no  right  to  make  selection.  To  this  I  re- 
ply, that  this  argument  involves  the  necessity  of  throw- 
all  overboard. 

The  selection  would  have  been  just  the  same,  if  they 
had  destroyed  those  who  are  living  now,  and  permitted 
the  others  to  remain. 

But  say  they,  lots  might  have  been  cast.  If  the  peril 
were  inevitable  and  immediate,  that  could  not  have  been 
done.  We  hear  for  the  first  time  of  casting  lots  in  a 
sinking  boat — where  the  question  is  whether  any  can  be 
saved,  rather  than  who  shall  be  lost.  Lots  in  cases  of 
famine,  where  means  of  subsistence  are  wanting  for  the 
number  of  the  crew,  are  matters  which,  horrible  as  they 
are,  are  comparatively  familiar  to  us.  But  to  cast  lots  to 
see  who  shall  go  first,  when  all  are  going,  is  reserved  for 
the  ingenuity  of  the  counsel,  who  constructs  a  raft  on 
board  of  ship,  in  the  depth  of  the  night,  with  the  pros- 
pect of  her  going  down  before  he  drives  the  first  nail,  or 
plies  the  first  rope. 

Now  I  have  shown,  if  these  views  be  sound,  that  apart 
from  the  preservation  of  the  rest  of  the  passengers,  and 
themselves,  these  men  could  have  had  no  inducement  to 
take  life.  That  the  magnanimity,  gallantry,  and  tender- 
ness of  Holmes,  utterly  forbid  the  idea.  That  therefore 
it  is  honestly  and  fairly  to  be  inferred,  that  they  appre- 
hended immediate  peril,  and  were  sustained  by  the  laws 
of  nature  in  acting  accordingly. 

As  to  the  circumstance  of  Frank  Askins  offering  five 
guineas  to  preserve  his  life  till  morning,  and  its  being  re- 
fused ;  that  so  far  from  making  against  us,  makes  for  us. 
If  they  had  complied  with  that  request,  they  must  either 
have  sold  the  lives  of  all  on  board  for  five  sovereigns ;  or 
have  offered  conclusive  evidence  that  they  did  not  con- 
ceive the  peril  to  be  immediate.  If  they  had  even  re- 


246  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

ceived  the  money,  and  afterwards  deprived  him  of  life ; 
the  money  itself  would  have  been  an  indication,  either 
of  a  corrupt  motive,  or  a  reliance  on  their  own  security, 
incompatible  with  the  doctrine  for  which  I  contend.  It 
was  a  terrific  deed,  to  be  sure,  consider  it  which  way  you 
will ;  and  the  very  horror  of  the  deed  constitutes  part 
of  its  defence :  as  it  is  fairly  to  be  presumed  it  would  not 
have  been  resorted  to,  except  in  a  case  of  a  horrible  neces- 
sity. 

The  fate  of  the  two  sisters,  is  spoken  of  with  peculiar 
pathos.  I  maintain  their  lives  were  never  sacrificed  by 
the  crew. 

1st.  Because  there  is  no  positive  proof  to  that  effect— 
mere  loose  suggestions  or  inferences. 

2d.  Because  there  was  not  a  hand  laid  upon  any  other 
woman  in  the  boat. 

3d.  Because  never  mentioned  by  witnesses  upon  pre- 
vious examinations. 

4th.  Because  the  conduct  of  the  sisters  shows  that  it 
was  an  act  of  self-devotion,  which  is  almost  admitted 
indeed ;  and  which  adds  another  bright  page  to  the  re- 
cords of  time,  exhibiting  the  fidelity,  affection  and  devo- 
tion of  a  woman's  heart. 

Considering  it  in  this  point  of  view,  its  glory  is  almost 
equal  to  its  horrors — neither  of  which  is  attributable  to 
the  defendant. 

But  it  is  said,  that  if  the  passengers  had  been  allowed 
to  live  until  the  next  morning,  a  ship  was  at  hand. 

First — I  answer,  that  the  probability  was,  that  they 
could  not  have  survived  the  night. 

And  secondly — that  without  prescience,  they  could  not 
know  of  the  ship  being  at  hand. 

Now  let  us  look  to  the  next  morning.  The  boat  is  still 
filled  with  water — the  peril  is  not  abated,  and  two  more 
half  frozen  wretches  are  removed — some  few  hours  after 
this,  the  vessel  is  discerned,  and  Holmes,  and  the  passen- 
gers,through  the  instrumentality  of  Holmes,  are  saved. 


/  HOLMES'  CASE.  247 

As  to  the  notion  that  there  is  any  distinction  between, 
sailors  and  other  men,  in  their  natural  rights  of  self-de- 
fence, it  is  not  to  be  tolerated.  If  the  peril  were  not 
imminent,  no  man  has  a  right  to  destroy  the  life  of 
another  for  the  preservation  of  his  own.  If  it  were  im- 
minent and  apparently  inevitable,  any  man,  without  re- 
gard to  condition,  vocation,  or  degree,  had  that  right. 
A  state  of  nature  implies  the  absence  of  all  but  natural 
law ;  and  natural  law  is  not  to  be  affected  by  artificial 
distinctions.  A  sailor  is  upon  equality  with  passengers — 
nay  he  is  upon  an  equality  with  his  captain  in  emergen- 
cies like  this. 

With  these  views  of  the  law  let  us  turn  to  the  facts. 

On  the  13th  March,  1841,  as  has  been  said,  the  ship 
sailed  from  Liverpool  for  Philadelphia — she  came  in  con- 
tact with  the  ice  on  the  19th  of  April — and  in  one  hour, 
and  less,  was  reduced  to  a  sinking  condition. 

The  captain  having  unavailiugly  attempted  the  pumps, 
ordered  the  boats  to  be  launched  from  the  ship.  Thirty- 
three  passengers  and  nine  sailors  entered  the  long  boat, 
and  the  captain,  seven  sailors  and  one  passenger  entered 
the  jolly  boat.  The  boats  were  moored  at  the  stern  of 
the  ship,by  dint  of  a  ten  fathom  rope,  attached  to  the 
vessel.  And  in  a  few  minutes  the  ship  sunk  forever  ;  the 
rope  being  severed  at  that  very  moment  by  Holmes,  who 
was  posted  for  that  purpose. 

The  counsel  at  this  point  of  the  case  indulged  in  a 
severe  and  unmeasured  attack  upon  Captain  Harris,  for 
having  deserted  the  vessel ;  maintaining  that  he  was 
bound  to  have  sunk  with  her — that  he  has  disgraced  the 
American  name  by  not  having  dope  so — and  that  he 
presents  by  his  conduct  a  shameful  contrast  to  Grace 
Darling,  who  placed  her  life  in  peril, to  redeem  the  passen- 
gers and  crew  from  a  wreck,  in  the  neighborhood  of  a 
light  house,  of  which  her  father  was  the  keeper. 

Now  this  is  all  very  poetical,  very  beautiful,  and  what 
embraces  both,  very  gallant  on  the  part  of  my  learned 


248  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

friend.  Rather  than  take  the  laurel  from  the  brow  of 
Grace  Darling  or  any  other  darling,  I  would  wear  the 
cypress  round  ray  own;  but  you  will  still  allow  me  to  say, 
there  is  a  vast  difference  between  an  experiment  in  a  life 
boat  and  almost  within  hail  of  the  shore,  and  the  scene  to 
which  our  attention  is  here  called — one  hundred  leagues 
from  land — in  the  darkness  of  night  and  surrounded  by 
icebergs :  the  captain  was  not  bound  to  do  more  than  he 
did— he  was  bound  to  do  all  that  he  did.  His  calmness 
and  composure  in  the  midst  of  these  horrible  scenes 
contributed  to  save  the  lives  of  upwards  of  fifty  human 
beings ;  although  it  is  true,  that  he  was  not  enabled  to 
rescue  those  who  remained  on  board  of  the  ship.  Their 
temporary  rescue  would  have  resulted  finally  in  the  loss 
of  all. 

As  to  his  sacrificing  his  own  life,  sympathy  for  others 
forbade  it.  If  he  and  all  of  the  sailors  had  perished,  so 
far  from  its  operating  to  the  benefit  of  the  passengers,  it 
would  have  proved  their  inevitable  and  total  destruction. 

But  say  the  gentlemen,  why  didn't  he  construct  a  raft 
— he  had  an  hour  to  do  it  in.  He  had  no  assurance  of  a 
moment — the  ship  was  laden  with  iron — two  columns  of 
water  of  the  thickness  of  a  man's  body,  were  pouring 
through  the  stem  of  the  ship  into  her  very  vitals.  And 
although  nearly  an  hour  elapsed  after  leaving  her,  and 
before  she  sunk,  how  was  he  to  determine  upon  the  prob- 
ability of  her  surviving  the  shock.  The  learned  counsel's 
argument* is  quite  consistent  throughout  the  case.  He 
says  a  raft  should  have  been  constructed  because  it  turned 
out  that  the  vessel  did  not  sink  for  an  hour — as  he  says 
that  the  men  should  not  have  perished,  because  a  ship 
afterwards  hove  in  sight. 

But,  it  is  further  said  by  the  learned  gentleman,  that 
the  captain  might  have  taken  oft*  more  of  the  passengers. 
That  suggestion  is  in  direct  opposition  to  the  evidence. 
The  gunwales  of  the  boat  were  within  six  or  tight  inches 
of  the  water;  a  single  additional  person  would  have 


HOLMES'  CASE.  249 

swamped  them — and  thus  all  must  have  perished,  per- 
haps, from  an  ill-judged  effort  to  save  one.  The  conduct 
of  the  captain  was  not  only  judicious,  but  humane.  If 
he  had  returned  alongside  of  the  ship  he  would  have  been 
ingulfed  by  the  vortex,  produced  by  her  sinking — or,  sub- 
jected to  a  calamity  scarcely  less  terrible,  by  some  of  the 
inmates  of  the  ship  jumping  into  the  boats.  As  to  the 
suggestion  that  he  might  have  at  least  rescued  the  child- 
ren in  the  ship,  that  attempt  would  have  resulted  in  the 
same  consequences — even  supposing  that  the  perishing 
parents  would  have  been  willing  to  sever  themselves  in 
this  moment  of  direst  emergency,  from  offspring  more 
precious  than  even  life  itself. 

I  have  dtemed  it  my  duty  to  say  this  much  in  behalf 
of  an  absent  man,  and  a  most  meritorious  and  exemplary 
officer  ;  not  that  it  was  by  any  means  essential  to  the  de- 
fence, but  simply  because  it  was  an  act  of  justice.  If  the 
captain  is  so  disgracious  now  in  the  eyes  of  the  prosecu- 
tion— so  culpable  in  the  eye  of  the  law,  why  have  not  our 
learned  adversaries  instituted  legal  proceedings  against 
him,  instead  of  attempting  to  transfer  the  burthen  of  his 
imputed  guilt  to  the  shoulders  of  the  prisoner.  The  cap- 
tain's deposition  was  taken  ;  he  was  examined  in  the 
office  of  the  attorney  for  the  United  States — he  was 
within  the  very  jaws  of  the  Royal  Tiger,  yet  those  jaws 
did  not  close  upon  him,  with  all  their  thirst  for  blood. 
Now,  however,  that  his  march  is  o'er  the  mountain  wave, 
the  counsel  speak  of  his  escape  from  justice,  and  the  hor- 
rible retribution  that  awaits  his  return.  This  is  the 
thunder  without  the  bolt,  or  the  power  of  Jove  to  wield 
it. 

We  pass  now  to  other  scenes.  In  the  morning  of  the 
20th  of  April,  which  was  ushered  in  in  darkness  and  in 
gloom,  the  two  boats  separated  from  each  other — the  cap- 
tain and  eight  others  directing  their  course,  in  the  jolly 
boat,  for  Newfoundland,  and  the  mate  and  thirty-three 
passengers  and  crew  remaining  in  the  long  boat.  At  the 


250  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

time  of  the  separation,  which  was  on  Tuesday  morning, 
the  captain  directed  his  first  officer,  who  had  left  the  jolly 
boat  for  the  long  boat,  to  endeavor  to  steer  for  the  nearest 
point  of  land,  which  was  two  hundred  and  fifty  miles  oif; 
and  th«3n  having  taken  a  list  of  those  on  board  of  the  long 
boat,  he  bade  them  a  melancholy  adieu.  In  parting,  the 
mate  begged  him  to  take  some  of  the  passengers  into  the 
jolly  boat ;  the  captain  refused  it  as  a  matter  of  impos- 
sibility ;  the  mate  declared  that  his  boat  would  sink,  or 
they  should  have  to  cast  lots  ;  and  the  captain,  clearly  ac- 
quiescing in  that  probable  necessity,  begged  that  it  might 
be  the  last  resort. 

Shortly  after  the  departure  of  the  jolly  boat,  the  sad 
series  of  disasters  commenced,  which  terminates  in  the 
lamentable  catastrophe  in  which  this  trial  originated. 
Nothing  before  this  point  of  time  bears  directly  upon 
this  question,  although  there  is  much  in  the  scenes  re- 
ferred to, calculated  to  touch*  the  most  callous  heart. 

At  the  time  the  boats  parted  company,  or  shortly  after, 
it  was  raining  heavily — the  air  was  very  cold,  from  the 
proximity  of  the  ice ;  and  the  miserable,  half  naked  pas- 
sengers were  benumbed  by  exposure  and  hardships,  to 
which  they  had  been  subjected  the  preceding  night.  The 
long  boat  had  leaked  from  the  time  she  left  the  ship ;  the 
plug  had,  in  some  way,  been  removed,  and  another  was 
substituted.  The  second  plug  was  lost,  and  a  variety  of 
expedients  were  from  time  to  time  resorted  to  to  supply 
its  place,  as  well  as  to  stop  the  other  leaks.  Added  to 
this,  the  long  boat  was,  in  her  situation,  entirely  unman- 
ageable. The  testimony  of  the  mate  and  captain,  which 
is  not  contradicted  by  any  of  the  witnesses,  places  this 
beyond  the  reach  of  doubt.  Parker,  the  mate,  says — "  I 
have  followed  the  sea  for  twenty-one  years.  I  think  the 
long  boat  was  too  unmanageable  to  be  saved,  from  the 
experience  I  have  had.  If  there  had  been  no  leak,  I  do 
not  think  they  would  have  been  able  to  save  themselves." 
Again,  upon  the  cross-examination — "  The  long  boat 


HOLMES'  CASE.  251 

being.' unmanageable,  I  thought  she  would  have  sunk  the 
first  night.  By  unmanageable,  I  mean  they  could  not 
put  her  head  from  one  point  to  another — she  was  going 
round  like  a  tub  ;  she  was  like  her  own  mistress — they 
could  not  keep  her  head  any  one  way,  not  even  for  a 
minute." 

And  Captain  Harris  is  equally  clear  and  explicit  upon 
the  subject,  when  he  informs  us — "  That  the  long  boat 
leaked,  that  they  attempted  to  bail,  but  could  not  make 
out  anything ;  they  were  so  thronged  in  the  boat.  She 
would  not  have  supported  one  half  she  had  in  her,  had 
there  been  a  moderate  blow,  even  without  a  leak.  The 
gunwale  was  about  twelve  inches  above  the  surface  of 
the  sea." 

Again,  speaking  on  the  same  subject,  the  captain  sa}Ts 
— "  I  found  she  was  unmanageable,  and  that  it  was  use- 
less for  me  to  waste  further  time  with  them — they  could 
not  use  the  oars — they  could  not  steer  the  boat,"  &c. 

And  further — "  A  very  little  irregularity  in  stowage 
would  have  capsized  the  long  boat ;  a  moderate  flaw 
would  have  swamped  her  very  quickly." 

On  Tuesday  it  rained  heavily  all  day  ;  the  sailors  were 
employed  in  rowing  at  times ;  the  passengers  took  their 
turns  in  bailing,  and  it  is  perfectly  apparent  from  the 
proof,  that  this  course  continued,  with  but  little  inter- 
mission or  relaxation,  until  the  dreary  night  closed  in. 
At  this  time  the  wind  increased,  the  waves  ran  high,  at 
times  dashing  into  the  boat — depositing  ice  upon  the 
already  half  frozen  passengers  and  crew ;  and  at  the  same 
time  calling  for  renewed  exertion,  while  impairing  the 
ability  to  make  it.  At  length,  abandoned  to  despair,  the 
water  increasing  in  the  boat,  and  the  peril  of  death  being 
imminent,  and  apparently  inevitable,  a  cry  of  horror  is 
heard  from  various  quarters,  exclaiming,  "We  are  sink- 
ing! We  are  sinking!"  Then  it  was  that  the  mate — 
who,  unmurmuringly,  had  taken  his  post  in  the  very 
throat  of  death,  at  the  command  of  the  captain, — per- 


252  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

ceiving  that  everything  was  reduced  to  a  state  of  utter 
hopelessness,  and  unable  longer  to  repress  his  emotions, 
cried  out  "  Help  me  God — this  will  not  do — men,  go  to 
work."  The  witnesses  all  agree  in  regard  to  these  ex- 
pressions of  the  mate ;  some,  however,  say  they  were 
thrice  repeated  before  they  were  obeyed — and  finally,  the 
obedience  of  the  crew  was  the  death  of  sixteen  of  the 
passengers  ;  by  which,  alone,  in  all  human  probability,  the 
remaining  seventeen  passengers  and  nine  seamen  were 
saved. 

Here  let  us  pause,  to  ascertain,  if  we  can,  what  were 
the  impulses,  the  secret  impulses,  the  direct  impulses  that 
led  to  this  deplorable  catastrophe.  I  deny,  emphatically, 
the  correctness  of  the  doctrine  of  the  prosecution,  that  if 
there  be  any  doubts  of  the  sufficiency  of  the  cause  which 
led  to  the  death,  the  defendant  should  be  convicted. 
This  inverts  the  whole  current  of  the  philosophy  of 
criminal  jurisprudence.  Doubts  of  motive — doubts  of 
acts — are  always  doubts  of  guilt ;  and  reasonable  doubts 
of  guilt  must  result  in  acquittal.  I  am  strengthened  in 
this  position  by  the  indisputable  fact  that  Holmes,  the 
prisoner,  during  the  whole  voyage,  was  upon  the  kindest 
and  most  harmonious  terms  with  all  the  passengers ; 
that  he  preserved  the  same  friendly  relation  to  them  after 
the  loss  of  the  ship ;  that  he  had  perilled  his  life  more 
than  once  to  preserve  them ;  that  he  had  literally 
stripped  himself  of  his  apparel  for  their  comfort:  in 
short,  his  desire  to  save  them,  seemed  to  absorb  all  con- 
sideration of  mere  personal  or  individual  safety.  In 
these  circumstances,  to  suppose  anything  cruel  or  wanton 
upon  his  part,  is  to  run  counter  to  everything  that  is  pos- 
sible or  natural.  I  infer,  therefore,  that  he  supposed  the 
peril  to  be  imminent  and  instantaneous,  or  he  never 
would  have  complied  with  the  orders  of  the  mate — and 
that  the  mate  who  gave  the  order,  did  it  under  the  im- 
pression of  direct  necessity,  is  too  obvious  to  require  or 
admit  of  argument. 


HOLMES'  CASE.  253 

On  Tuesday  night,  I  say,  about  10  o'clock,  the 
boat  filled  with  water  from  above  and  below ;  the 
wind  having  risen ;  the  waves  '  having  increased  ;  the 
ice  accumulating,  and  the  passengers  shrieking  with 
horror  at  the  prospect  of  drowning;  the  final,  fatal 
order  was  given.  It  is  not  to  be  supposed  that  these 
hardy  sons  of  the  sea  were  unnecessarily  alarmed.  That 
Holmes,  particularly,  was  a  brave,  resolute  and  deter- 
termined  seaman,  as  well  as  a  most  humane  man,  no  one 
will  venture  to  deny  :  that  he  had  but  one  supposable 
object,  which  was  to  save  such  as  might  be  saved,  is 
equally  clear.  I  maintain  therefore,  that  the  most  favor- 
able construction  is  to  be  placed  upon  his  motives ;  and 
it  is  justly  to  be  inferred  that  he  acted  upon  the  impres- 
sion that  the  danger  was  imminent,  and  that  death  was 
inevitable  to  all,  except  by  resorting  to  those  means 
which  he  actually  adopted.  "We  are  told  however,  that 
he  is  not  the  judge.  I  ask,  who  is  the  judge?  There  is 
a  vast  deal  of  difference  between  judging  in  a  storm,  and 
judging  of  a  representation  of  a  storm;  and  therefore  it 
was  that  I  said,  that  in  order  to  a  righteous  determina- 
tion of  this  case,  your  verdict  should  be  rendered  in  the 
midst  of  perils  such  as  have  been  described,  instead  of 
being  pronounced  while  surrounded  by  all  the  securities 
and  sanctions  of  the  law.  I  agree  that  if  you  can  conceive 
of  any  other  inducement  than  the  desire  of  self-preserva- 
tion, and  that  of  the  majority  of  the  passengers,  inducing 
this  act — which  I  defy  you  to  do — you  may  then  imagine 
that  that  inducement  led  to  the  act,  and  thereby  divest 
the  prisoner  of  his  present  defence ;  but  even  taking  all 
the  statements  of  the  witnesses  for  the  prosecution,  highly 
colored — I  will  not  say  disclored — as  they  are,  and  torture 
them  as  you  may,  it  is  impossible  for  you  to  arrive  at  any 
other  conclusion,  than  that  Holmes  was  actuated  by  the 
kindest  and  most  generous  influences ;  and  certainly  I 
need  not  say  that  kindness  and  generosity  are  opposed  to 
wantonness  and  barbarity.  I  repeat,  then,  that  in  these 


254  FORENSIC   SPEECHES   OP   DAVID   PAUL   BROWN. 

circumstances  of  terror,  men  are  left  to  their  honest  de- 
terminations. They  are  not  to  resort  to  mere  imaginary 
evils  as  a  pretext,  nor  are  they  to  be  supposed  to  resort 
to  them  as  a  pretext.  If  they  err  in  their  determination, 
according  to  the  rules  adopted  by  a  cold  system  of  reason- 
ing, their  error,  as  thus  detected,  is  not  to  be  visited  upon 
them  as  a  crime. 

Suppose  two  men,  occupying  perfectly  friendly  relations 
to  each  other,  should  be  cast  away,  and  both  seize  the 
same  plank  (to  me  the  favorite  illustration),  and  one 
should  thrust  the  other  off;  would  it  not  be  monstrous, 
upon  the  trial  of  the  alleged  offender,  that  the  plank 
should  be  brought  into  court  and  submitted  to  some  men 

O 

of  approved  skill,  and  measured  and  examined  by  square, 
rule  and  compass — its  specific  gravity  ascertained,  and  the 
possibility  of  its  sufficiency  to  sustain  two  men  discussed 
and  decided — and  upon  the  basis  of  such  calculation  as 
that,  the  prisoner  should  be  deprived  of  his  liberty  or  his 
life;  when,  if  you  had  placed  the  witnesses  in  his  precise 
situation,  and  they  had  been  called  upon  to  act  upon  a 
sudden  emergency,  they  would  have  done  precisely  what 
he  did,  and  what  every  principle  of  natural  law  abund- 
antly warrants.  It  is  worse  than  idle  to  suppose  that  in 
such  a  critical  juncture  as  this,  men  are  to  cast  lots  or 
toss  up  for  their  lives.  In  such  peril  a  man  makes  his 
own  law  with  his  own  right  arm. 

But,  say  the  learned  counsel,  had  the  passengers  been 
permitted  to  remain  until  the  morning,  they  might  have 
been  saved  by  the  Crescent.  I  answer,  had  they  remained 
a  single  hour,  they  would  have  never  seen  the  morning — 
every  man,  woman  and  child,  would  have  weltered  in  the 
coral  caves  of  the  ocean.  The  approach  of  the  Crescent 
could  not,  even  in  point  of  fact,  have  operated  to  alleviate 
their  fears — without  prescience,  they  could  have  antici- 
pated no  such  relief.  Men  are  to  act  upon  the  past  and 
the  present — the  future  belongs  to  God  alone. 

You  are  told,  however,  that  the  condition  of  the  boat 


HOLMES'  CASE.  255 

was  not  hopeless — that  she  was  on  "  the  great  high  road 
of  nations,"  and  that  there  was  every  prospect  of  her  being 
picked  up.  The  gentleman  speaks  of  the  great  high  road 
of  nations  over  the  pathless  ocean,  as  if  it  were  the  Chesa- 
peake and  Delaware  canal,  in  which  two  vessels  could 
scarcely  pass  abreast.  The  "  President "  steamer,  sunk 
probably  upon  this  great  high  road,  leaving  no  voice  to 
tell  her  fate.  Surrounded,  as  the  boat  was,  by  mountains 
of  ice,  no  ship  would  probably  ever  have  reached  her,  if 
steering  in  that  direct  course.  Fate  itself  seemed  to  for- 
bid it — nay,  no  vessel,  says  the  captain,  would  have  ven- 
tured among  the  ice,  had  the  position  of  the  boat  been 
known  ;  as  no  commander,  however  philanthropic,  would 
have  so  far  perilled  his  own  hopes  in  order  to  redeem  the 
lives  of  others.  The  chances  of  rescue  were  entirely  too 
remote  then, — ninety-nine  chances  against  one,  say  the 
witnesses, — to  enter  into  the  calculation  of  the  mate  and 
crew,  had  their  circumstances  even  been  such  as  to  allow 
them  dispassionately  to  reason  upon  the  subject — but  as 
it  was,  terror  had  assumed  the  throne  of  reason,  passion 
became  judgment,  and  you  know  the  sequel. 

I  have  now  briefly  and  imperfectly  passed  over  that 
part  of  the  case  upon  which  your  decision  must  mainly 
turn  ;  but  before  I  close,  let  me  direct  your  attention  to 
another  circumstance  which  casts  a  reflected  light  upon 
the  matters  already  adverted  to.  I  refer  to  the  occur- 
rence of  the  next  day — and  this  leads  me  to  present  to 
your  view  another  picture  in  this  nautical  gallery. 

On  Wednesday,  the  21st  of  April,  the  morning  dawns ; 
yet  the  sun  still  shrouds  his  face  amidst  shadowy  clouds 
and  darkness,  from  the  traces  of  horror  which  the  past 
night  had  left.  You  may  see,  gentlemen  of  the  jury, 
without  any  extraordinary  stretch  of  fancy,  on  that  awful 
morning,  a  small  boat,  in  the  centre  of  the  ocean,  with  a 
single  sailor,  apparently  engaged  in  an  effort  to  rig  out  a 
sail — baring  his  brow  and  his  breast  to  the  bleak  winds 
that  howl  around  him,  with  no  one  to  impart  encourage- 


256  FORENSIC    SPEECHES   OF    DAVID    PAUL   BROWN. 

ment  or  aid — deserted  by  earth  and  frowned  upon  by 
Heaven.  That  man  was  Holmes,  the  prisoner  at  the  bar. 
His  mess-mates  have  sunk  exhausted  into  the  bottom  of 
the  boat — the  mate  is  lost  in  dismay — the  passengers  are 
buried  in  hopelessness  and  horror — 

Silent  they  sit 

All  faculties  absorbed  by  black  despair ; 
The  world  is  banish'd,  and  the  soul  is  dead 
To  earthly  sympathy — to  earthly  care, 
Brooding  alone  on  its  eternal  fate, 
And  prostrate  in  the  presence  of  its  God. 

And  there  amidst  this  solemn  and  harrowing  scene  the 
defendant  stands,  toiling  and  struggling  to  the  last, — not 
for  himself,  but  for  those  very  persons  who,  having  for- 
gotten their  gratitude  with  their  danger,  now  appear 
before  you  to  pay  for  their  own  life,  by  depriving  their 
preserver  of  his.  Whether  this  mode  of  discharging 
obligations  shall  meet  with  your  approval,  it  will  remain 
for  your  verdict  to  decide. 

I  have  now  done.  I  am  perfectly  sensible  of  the  power 
of  the  learned  counsel  opposed  to  me ;  and  if  this  case  is 
to  be  determined  by  the  comparative  strength  or  skill  of 
the  advocates,  I  have  much  cause  for  alarm.  My  gallant 
friend  who  opened  the  conflict,  appeared  like  Apollo,  ra- 
diant in  his  glory — balancing  his  body,  adjusting  his  bow, 
and  directing  his  shaft — his  golden  pointed  shaft — at  the 
very  heart  of  his  intended  victim.  By  and  by,  his  col- 
league, who  may  be  compared  to  Hercules,  will  take  the 
field  with  his  club,  and  exert  all  his  stupendous  powers 
to  demolish  this  defence.  Still,  armed  in  the  panoply  of 
justice,  I  entertain  no  fear,  for  after  all,  gentlemen  of  the 
jury,  what  is  a  giant  when  wrapped  up  in  a  QUILT? 
Against  all  these  odds  therefore  I  stand  firmly  by  the 
side  of  that  man,  who  always  stood  firmly  by  others. 
The  destiny — the  worldly  destiny,  of  the  prisoner,  is  now 
confided  to  your  hands.  Do  with  him  as  you  would  be 
done  by. 


HINCHMAN    CASE. 


Supreme  Court.     July  Term,  1848.     No.  87. 
MORGAN  HINCHMAN  v.  SAMUEL  S.  RICHIE  et  al. 
[EXTRACT  FROM  "THE  FORTTM."] 

"  The  case  of  Morgan  Hinchman  against  sixteen  de- 
fendants— persons  all  of  great  respectability,  and  some  of 
them  of  wealth  and  influence — was  tried  in  the  Supreme 
Court  of  Pennsylvania,  in  March,  1849.  The  case  awak- 
ened great  attention  ;  it  commenced  on  the  ninth  of  March 
and  continued  until  the  seventh  of  April. 

"  Morgan  Hinchman  was  a  young  man  of  respectable 
connections,  a  member  of  the  Society  of  Friends,  residing 
with  a  wife  and  young  family  of  children,  in  a  neighbor- 
ing county,  apparently  prosperous  and  happy.  On  the' 
evening  of  the  tifth  of  January,  1847,  he  left  his  farm  to 
attend  the  market  in  Philadelphia.  Before  his  departure 
he  arranged  many  little  domestic  affairs  with  regularity 
and  care ;  and  when  in  Philadelphia,  after  disposing  of 
his  produce,  attended  to  some  business  relating  to  a  loan 
of  money,  by  a  mortgage  on  his  farm.  On  the  morning 
of  the  seventh,  the  transactions  occurred  which  gave  rise 
to  the  subsequent  suit.  At  the  same  hour  of  that  morn- 
ing— the  hour  previously  fixed  upon  by  Morgan  Hinch- 
man for  concluding  the  negotiation  about  the  mortgage — 
several  of  the  defendants  assembled  at  the  same  place, 
and  arrested  Morgan  Hinchman,  after  informing  him 
that  they  were  about  to  take  him  to  the  Frankford  Luna- 
tic Asylum.  Without  repeating  the  details  of  the  case, 
it  is  sufficient  to  state,  that  in  pursuance  of  the  plans  pre- 
viously laid,  and  in  spite  of  the  resistance  of  the  alleged 
lunatic,  he  was  carried  to  the  asylum  and  restrained  of 
his  liberty  for  several  months. 

17  (257) 


253  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

"  It  was  for  a  conspiracy,  accom pained  by  the  overt  act 
of  his  imprisonment,  that  an  action  for  damages  was 
brought ;  the  parties  charged  being  not  only  those  ac- 
tively combined  in  the  arrest,  but  others,  by  whom  it 
was  alleged,  a  less  active,  but  equally  culpable  part,  was 
taken  in  the  proceeding  against  the  plaintiff.  It  is  just, 
to  this  statement  of  the  case,  to  remark  that  the  defend- 
ants, one  and  all,  denied,  in  every  way  and  form, 
the  charge  against  them.  They  alleged  that  Morgan 
Hinchman  was  taken  to  the  asylum  at  the  request  of 
his  wife  and  mother ;  upon  the  certificate  of  a  very  com- 
petent medical  adviser ;  and  that  he  was  at  the  time  of 
his  arrest,  and  had  beeu  for  a  long  time  previous,  a 
lunatic." 

The  trial  of  this  cause  took  place  before  Judge  Burn- 
side,  one  of  the  judges  of  the  Supreme  Court,  sitting  at 
Nisi  Prius ;  and  although  the  sessions  of  the  court  fre- 
quently continued  until  after  eight  o'clock  p.  M.,  the 
testimony  and  speeches  of  counsel  (as  has  been  stated) 
occupied  nearly  a  month. 

After  a  very  able  charge  from  the  judge,  the  case  was 
given  to  the  jury,  who,  after  being  "  out "  five  days,  found 
a  verdict  in  favor  of  the  plaintiff,  against  Samuel  S.  Richie, 
Edward  Richie,  John  Li ppincott,  George  M.  Elkinton,  John 
M.  Whitall,  John  L.  Kite,  and  Elizabeth  R.  Shoemaker, 
and  assessed  the  damages  at  TEN"  THOUSAND  DOLLARS  ;  and 
a  verdict  in  favor  of  the  defendants,  Philip  Garrett, 
Joshua  H.  Worthington,  Benjamin  H.  "Warder,  Thomas 
"Wistar,  Jr.,  William  Biddle,  John  D.  Griscom,  and  Anna 
W.  Hinchman. 

Dr.  Evans  had  been  previously  acquitted  at  the  close  of 
the  plaintiffs  evidence. 

The  case  was  removed  to  the  Supreme  Court,  in  bane  ; 
but  was  subsequently  settled,  without  any  action  by  that 
tribunal. 

Counsel  for  the  Plaintiff's. 

Messrs.  WILLIAM  B.  REED,  SAMUEL  H.  PERKINS,  DAVID 
PAUL  BROWN. 

For  the  Defendants. 

Messrs.  J.  WILLIAMS  BIDDLE,  CHARLES  GIBBONS,  GEORGE 
GRISCOM,  HENRY  J.  WILLIAMS. 


HINCHMAN  CASE.  259 


SPEECH  IN  HINCHMAN  CASE. 

[Delivered  on  GOOD  FRIDAY,  1849.] 


MAY  IT  PLEASE  TOUR  HONOR: 

Upon  this  day,  gentlemen  of  the  jury,  this  HOLT  clay, 
while  the  great  masses  of  the  Christian  community  are 
devoutly  engaged  in  a  public  manifestation  of  pious  grati- 
tude for  the  priceless  and  free  sacrifice  which  redeemed 
the  fallen  family  of  man,  from  the  miseries  of  eternal 
death  ;  it  is  a  melancholy  and  painful  duty,  to  be  com- 
pelled to  force  upon  your  attention,  the  persecution  and 
oppression — the  cruelty  and  barbarity — practised,  or  al- 
leged to  be  practised  (for  I  take  nothing  for  granted),  by 
a  body  of  professing  Christians,  lovers  of  peace,  and 
followers  of  a  meek  and  lowly  Saviour,  against  an  unof- 
fending fellow  man. 

My  learned  friend,  though  professional  adversary,  has 
ventured,  in  the  close  of  his  remarks,  to  appeal  to  you, 
and  to  attempt  to  enlist  your  sympathies,  in  behalf  of  the 
defendants  in  this  case,  closely  connected  together  as  they 
have  been  from  the  first  to  the  last,  as  a  solid  phalanx,  in 
an  unsparing  opposition  to  Morgan  Hinchman.  Instead 
of  casting  an  eye  of  pity  or  commiseration  upon  the 
helpless  condition  of  the  plaintiff — upon  his  destitute 
and  forlorn,  degraded  and  disgraced  condition — all  his 
humanity  seems  to  be  absorbed  by  a  sympathetic  regard 
for  those,  whom  he  professionally  represents,  and  who  are 
the  actual  offenders. 

When  Pilate    (and,  it  is  an  apt  illustration  upon  the 


260  FORENSIC    SPEECHES   OF   DAVID    PAUL   BROWN. 

present  occasion)  meanly  yielded  to  the  clamors  of  the 
multitude,  and  washing  his  hands  in  their  presence,  sur- 
rendered the  Saviour  of  mankind  to  an  unholy  and  in- 
furiate combination,  consoling  himself  by  exclaiming, 
"I  am  innocent  of  the  wrongs  of  this  just  person;"  he 
adopted  by  anticipation  some  portion  of  the  argument 
resorted  to  by  this  defence.  He  only  stood  by,  forsooth, 
and  did  nothing!  He  was  innocent  of  the  blood  of  the 
accused  !  But  let  me  tell  you  now,  and  it  will  be  a  sub- 
ject for  elaborate  descant  hereafter — let  me  fell  you  now, 
that  that  man,  however  elevated  or  respectable,  who 
stands  by  patiently  and  acquiesces  in  a  wrong  that  is 
about  to  be,  or  has  been  committed;  imparts  to  the 
wrong-doer  the  aid  and  support  of  his  presence,  and 
thereby  participates  in-  the  offence,.  Although,  like 
Pilate,  he  may  console  himself  with  the  operations  of 
washing  off  external  guilt ;  he  shares  in  that  evil,  shares 
in  that  crime,  which  he  neither  endeavored  to  prevent, 
nor  was  disposed  to  resist  or  redress.  That  is  my  doc- 
trine, and  we  shall  soon  see  how  it  will  abide  the  test, 
when  I  come  to  apply  it  in  requisite  connection  with  the 
different  portions  of  this  case,  in  which  that  point  of  in- 
quiry is  involved. 

May  it  please  your  honor,  I  never  had  more  occasion 
to  entertain  confidence  in  a  judicial  officer  than  I  have 
now.  I  never  felt  more  distinctly  or  more  deeply  the 
necessity  for  entire  reliance  upon  the  integrity  of  a  judge. 
I  think  during  the  progress  of  this  case,  however  your 
honor's  mind  may  have  wavered — as  it  is  proper  it 
should  do — in  relation  to  certain  legal  points ;  yet  I  have 
not  observed,  and  I  am  certain  in  relation  to  the  dis- 
charge of  your  duties  I  never  shall  observe,  the  slightest 
vacillation  or  unsteadiness,  in  regard  to  the  immutable 
principles  of  justice. 

It  will  be  my  duty,  so  far  as  it  may  be  within  my 
power,  to  relieve  you  of  any  doubts  hitherto  entertained  ; 
and  if  I  do  not  settle  beyond  cavil  or  question  the  entire 


HINCHMAN   CASE.  261 

fallacy  of  the  whole  doctrine  of  the  defendants'  counsel ; 
and  show  that  at  most  it  is  a  mere  castle  in  the  air, 
resting  upon  no  other  foundation  than  fancy,  or  error ; 
then  I  will  submit  as  a  philosopher  ought  to  do,  and 
calmly  encounter  the  consequence. 

Gentlemen  of  the  jury,  the  extraordinary  and  unex- 
pected remarks  of  my  learned  friend,  have  forced  me 
somewhat  from  the  order  of  my  proposed  argument,  but 
that's  not  much — I  can  readily  return  and  pursue  it. 

I  am  not,; allow  me  to  say — and  perhaps  it  may  be  some- 
what gratifying  to  you  to  learn — I  am  not,  may  it  please 
your  honor,  as  I  presume  you  know,  one  of  that  class  of 
advocates,  though  I  speak  in  no  disparagement  of  others, 
who  seem  to  conceive  the  length  and  the  strength  of  a 
speech  to  be  synonymous.  I  shall  therefore,  if  I  have 
measured  myself  rightly,  occupy  comparatively  but  a 
short  time  in  discharging  the  duties  that  have  fallen  to 
my  allotment.  If  my  argument  be  to  the  purpose — if  it 
be  efficient,  with  relation  to  the  nature  and  results  of  this 
case — it  cannot  be  too  short ;  and  if  it  be  not  appropriate 
to  the  cause,  and  calculated  to  aid  you  in  your  delibera- 
tions, and  secure  your  arrival  at  just  results,  it  must  cer- 
tainly be  too  long. 

Now,  gentlemen,  to  set  out  deliberately  and  composedly 
upon  our  journey,  in  order  to  proceed  regularly  through 
its  progress,  I  take  leave  simply  to  make  one  or  two 
additional  observations.  My  learned  friends  and  col- 
leagues have  already  prepared  the  coloring,  and  sketched 
with  a  master  hand  the  different  figures  in  this  sad  pic- 
ture, and  it  only  remains  for  me  [and  in  that  I  have  been 
somewhat  assisted  by  the  last  counsel  who  addressed  you 
for  the  defendants]  to  group  those  figures  together ;  to 
impart  to  them  the  benefit  of  light  and  shade,  and  leave 
it  to  your  verdict  to  complete  the  work,  and  then  submit 
it  to  your  honor  as  the  judge — and  a  ripe  and  good  one 
— to  ratify  and  approve  that  which  shall  have  been  done. 

This,  as  my  learned  friend  has  justly  told  you,  is  a  most 


262  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

important  case.  Not  as  you  will  perceive  at  a  single 
glance,  with  reference  to  the  stupendous  magnitude  of 
the  pecuniary  amount  involved ;  not  that  it  emhraces 
any  considerations  directly  affecting  human  life ;  but  be- 
cause it  is  unparalleled  by  any  proceeding  recorded  in  the 
annals  of  American  jurisprudence ;  and  because  it  com- 
prehends those  momentous  principles — without  the  sanc- 
tity, protection  and  vindication  of  which — even  life  itself 
would  be  a  burthen  and  the  world  a  waste.  Let  me  con- 
jure you  to  think  well  of  this — don't  suppose  that  the 
question  here  is  merely  whether  forty  thousand  dollars 
are  to  pass  from  the  pockets  and  coffers  of  the  wealthy  and 
respectable  into  the  pockets  and  coffers  of  the  poor  and 
destitute.  I  scorn  to  put  this  case  on  any  such  footing. 
I  am  not  here  as  a  pauper  to  BEG  ;  and  if  I  were,  the  last 
men  to  whom  I  would  apply  to  relieve  the  wants  or  the 
necessities  of  the  plaintiff,  would  be  his  heartless  persecu- 
tors and  oppressors. 

I  am  here  for  justice.  Answer — shall  I  have  it  ?  That 
is  the  question.  I  don't  come  to  steal  it.  I  don't  intend, 
borrowing  an  example  from  the  defendants,  to  take  it  by 
force.  I  don't  come  with  my  corporal's  guard — or  armed 
myrmidons,  for  the  purpose  of  wresting  it  from  you.  I 
come  here  to  demand  it ;  here  in  this  court  of  justice,  and 
I  present  to  you  the  basis  upon  which  I  build  my  claims. 
My  learned  friend  has  said,  and  whatever  he  says,  he  says 
well — and  skilfully  too — that  if  you  give  a  verdict  for  the 
plaintiff",  you  deeply  affect  these  defendants  in  the  estima- 
tion of  the  community.  These  respectable  men  ! — I  dare 
say  you  will  suppose  it  rather  strange  to  call  them  so  in 
connection  with  this  case ;  but  whether  they  are  respect- 
able, powerful,  wealthy,  or  otherwise,  matters  nothing  to 
me — and  should  matter  nothing  to  you.  Those  are  not 
the  vital  considerations  here.  I  don't  ask  them  to  share 
their  wealth  unless  we  are  entitled  to  it  as  an  idemnity 
for  our  wrongs.  I  invoke  no  prejudices.  I  don't  desire 
to  oppress  them ;  on  the  contrary,  the  whole  philosophy 


HINCHMAN  CASE.  263 

of  this  case  is  reared  upon  a  very  different  doctrine.  If 
instead  of  a  legitimate  defence,  they  talk  of  respecta- 
bility, I  give  my  answer  in  the  words  of  Samuel  Beans, — 
the  venerable  individual  who  has  been  so  much  censured 
here,  because  he  venturec^P  encounter  this  self-created 
autocracy,  if  I  may  call  it  so,-— I  answer  them  in  his  sim- 
ple though  powerful  language ;  "  Your  characters  must 
be  very  good,  if  they  will  resist  the  flood  and  current  of 
proof  in  regard  to  this  transaction,  which  sets  against 
and  overwhelms  them."  Why,  these  sage  grave  men. 
attempt  to  make  character  a  mere  marketable  com- 
modity ;  not  that  priceless  jewel  that  my  learned  friend 
has  spoken  of.  It"  is  to  be  a  mere  shield  and  protection 
for  iniquity  and  outrage;  for  that  is  what  I  understand 
to  be  the  practical  end  and  application  of  the  argument. 
I  agree  that  character  is  everything.  I  agree  that  the 
human  frame  is  but  a  tawdry,  empty,  worthless  casket, 
when  that  jewel's  gone.  But  where  shall  this  doctrine 
land  us?  That's' the  point.  Had  Lord  Bacon  no  charac- 
ter ?  "  The  wisest,  brightest,  meanest  of  mankind  ? " 
Had  he  no  intellectual,  no  moral,  no  national,  no  univer- 
sal character? — broad  and  expansive  as  nature  itself — 
yet  all  this  did  not  save  him,  when  he  had  committed 
an  atrocious  wrong,  and  sullied  the  pure  ermine — the 
judicial  and  national  glory — of  his  country.  Was  not 
Dr.  Dodd  a  man  of  high  character  ?  Yet  all  his  character 
could  not  save  him  from  the  gallows.  Nay,  if  you  will 
pardon  me,  it  is  pertinent  to  the  time,  and  I  introduce  it 
with  becoming  reverence  for  its  associations — was  not 
Judas,  one  of  the  disciples,  a  man  of  character,  until  he 
traitorously  betrayed  his  master  with  a  kiss — and  basely 
sold  the  Redeemer  of  the  world  for  "  thirty  pieces." 

Character,  so  far  from  being  a  defence,  so  far  from 
being  matter  of  vindication  or  protection ;  where  the  tes- 
timony is  calculated  to  enforce  the  claims  of  the  plaintiff, 
is  matter  of  aggravation,  disgrace,  and  confusion.  What 
is  there — while  I  admit  and  maintain  the  elevated  position 


264  FORENSIC    SPEECHES   OP   DAVID    PAUL    BROWN. 

in  which  character  places  man — what  is  there,  I  say,  that 
degrades  him,  even  below  the  lowest  deep  of  odium  and 
contempt,  more  than  its  willing  and  wanton  sacrifice? 
Why,  was  not  Lucifer — surnamed  the  Morning  Star — be- 
fore his  fall,  one  of  the  brightest  spirits  among  the  angelic 
hosts  ?  He  that  then  stood  the  highest  and  the  purest ; 
for  that  plain  reason  now  stands  the  lowest  and  the  black- 
est. I  wish  this  subject  of  character  distinctly  under- 
stood. It  is  a  sort  of  mawkish  sentimentality  too  often 
introduced,  to  lend  grace  to  a  desperate  defence.  It  is 
like  a  moon-beam  on  a  thunder  cloud,  making  the  gloom 
more  dreadful.  I  repeat  it,  I  am  disposed  to  pay  as 
warm  a  tribute  to  the  regard  in  which  reputation  is  held, 
as  any  man.  But  I  have  no  notion,  no  idea,  sir,  that 
gentlemen  like  these,  or  any  other  persons,  should  imagine 
that  there  is  any  personal  hostility  on  my  part  towards 
them,  because  I  take  leave  to  speak  of  them  as  they  de- 
serve. 

When  the  principles  of  this  case  are  fully  understood 
you  will  find  little  or  no  trouble  in  disposing  of  all  its  de- 
tails; and,  therefore,  I  shall  address  myself  to  principles 
rather  than  details.  It  is  not  necessary  for  me  to  apply 
chemical  process,  or  a  microscope,  to  analyze  or  detect 
every  freckle  in  a  man's  face,  in  order  to  identity  him. 
So,  if  I  show  you  the  principles  that  embrace  the  diversi- 
fied facts,  that  have  been  brought  out  during  the  progress 
of  this  laborious  and  protracted  investigation,  and  which 
bear  essentially  upon  this  case ;  and  show  you,  also,  that 
the  grounds  that  we  occupy,  and  profess-to  stand  upon, 
are  sound  and  unshaken  ;  and  that  our  learned  friends  in 
their  attempted  assaults  upon  us,  labor  under  a  delusion — 
to  borrow  a  phrase  from  Horace,  through  the  quotation 
of  Mr.  Gibbons — "  a  dear  delusion  of  a  raptured  mind  ;" 
you  will  pardon  me,  when  I  say  that  will  be  abundantly 
sufficient. 

Really,  these  men  must  consider  that  a  very  slight 
matter  is  a  basis  for  issuing  a  commission  of  lunacy,  if 


HINCHMAN    CASE.  235 

their  doctrine  be  correct ;  and,  if  the  commission  be 
irregularly  issued,  I  suppose  it  is  perfect  indemnity ,  ac- 
cording to  their  creed,  that  comfortable  quarters  in  a 
mad-house  are  supplied  for  their  victim. 

Let  us  turn  to  the  beautiful  picture,  prefixed  to  the 
accompanying  history — written  by  Dr.  Evans  upon  the 
moderate  compensation  of  six  hundred  dollars  a  year,  for 
one  or  two  flying  visits  a  week.  That  history  has  been 
read  here  by  the  counsel,  almost  in  extenso;  and  certainly 
"  ad  nauseam."  He  tells  you  that  it  is  a  perfect  paradise; 
don't  let  him  ensnare  you  with  "mere  springes  to  catch 
wood-cock."  Would  you  not  now  suppose  from  this 
poetic,  and  romantic,  and  rapturous  description  of  the 
Frankford  Asylum,  that  it  was  a  perfect  Arcadia?  See, 
how  well  it  appears  in  the  engraving,  and  in  print!  Only 
behold  the  terraces,  the  lawn,  the  gravel  walks,  the  flower 
gardens,  roses,  deer  parks,  and  everything  of  the  most 
attractive  and  alluring  character!  And  all  these  luxuri- 
ous indulgences,  says  our  learned  friend,  are  supervised 
and  secured  without  even  the  equivalent  of  a  salary. 
Amazing  Philanthropy !  How  is  this !  It  seems  very 
wonderful !  That  wonder  disappears  when  you  are  told 
that  it  is  not  the  fact.  Philip  Garret,  l)r.  Worthington, 
Dr.  Evans,  and  a  whole  retinue  of  keepers  are  all  abun-' 
dantly  paid.  I  don't  mention  this  as  a  matter  of  com- 
plaint ;  but  in  refutation  of  their  pretensions,  which  have 
been  introduced  as  a  part  of  the  defence.  And  I  bee 

*•  o 

leave  to  say,  with  all  respect  and  deference  to  the  learned 
counsel,  that  it  was  an  abuse  of  the  patience  and  time  of 
the  court  and  jury,  to  press  so  elaborately  upon  us,  the 
very  equivocal  and  somewhat  meretricious  attractions  of 
a  private  mad-house.  I  wish  when  you  can  be  brought  to 
think  yourselves  insane  (though,  according  to  the  doctor's 
notions,  you  will  never  be  sane,  until  then),  you  would  take 
up  your  lodgings  in  this  most  magnificent  boarding  house 
— making,  however,  the  special  provision  that  you  shall 
have  the  benefit  of  the  habeas  corpus  act,  in  case  it  so 


266  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

turns  out  that  you  should  be  awakened  from  your  slum- 
bers every  hour  of  the  night,  or  nearly  beaten  to  death 
by  some  of  its  civil  and  courteous  inmates.  Why,  gentle- 
men of  the  jury,  this  outward  parade  of  comfort  is  only 
calculated  to  sharpen  the  agony  of  the  sufferer.  Do  you — 
can  you,  suppose,  that  the  free  bird,  that  has  been  accus- 
tomed to  scale  the  blue  vault  of  heaven,  when  entrapped 
and  consigned  to  a  costly  cage,  is  consoled  by  the  consid- 
eration, if  I  may  ascribe  consideration  to  a  bird — rather 
let  me  say  its  instinctive  emotional  feelings  ?  (to  borrow 
something  from  the  doctors.) — Do  you  suppose,  I  say,  it 
is  comforted  by  the  fact  of  the  cage  being  of  gold ;  or, 
will  it  not  rather  beat  its  fluttering  little  life  out  against 
those  golden  bars,  that  shut  it  in  from  liberty  ?  It  is  use- 
less, therefore — nay,  worse  than  useless — to  resort  to  these 
empty  lures.  I  don't  care  if  this  asylum  were  made  of 
"  one  entire  and  perfect  chrysolite."  What  does  it  come 
to?  What  is  all  that  to  the  famished  soul,  the  degraded 

'  O 

and  debased  spirit,  the  humiliating  sense  of  a  two-fold 
bondage — bondage  of  the  body,  attended  with  imputed 
bondage  at  least,  of  the  immortal  mind. 

With  these  views — thus  generally  expressed — while,  as 
I  have  said,  I  shall  not  wantonly  trespass  on  your  pa- 
tience, I  shall  still  devote  so  much  time  to  the  proper  ex- 
amination of  the  essentials  of  the  subject  before  us,  as 
may  be  commensurate  with  its  importance,  and  a  becom- 
ing respect  to  this  tribunal.  It  is  my  duty  to  discuss  it 
fairly,  though  freely  and  fearlessly  ;  and  it  will  then  be1 
your  duty  to  determine  upon  its  merits. 

I  had  spoken,  gentlemen  of  the  jury,  of  the  general 
outlines  of  this  case ;  and  I  am  sure  you  will  not  deem  it 
improper  that  I  should  return,  for  a  moment,  from  a 
slight  wandering — into  which  I  have  been  seduced  by  the 
example  of  others — to  its  individual  and  relative  conse- 
quences. It  is  important  to  the  plaintiff'  as  an  unau- 
thorized and  cruel  abridgement  of  his  liberty — liberty 
without  which  "  life  grows  insipid  and  has  lost  its 


HINCHMAN   CASE.  267 

relish  ;"  it  is  important  as  it  bears  upon  the  bodily 
and  mental  sufferings  to  which  he  was  subjected — the 
exposure  and  disgrace  to  which  he  was  causelessly  con- 
demned;  it  is  important  as  it  regards  the  arbitrary  as- 
sumption and  waste  of  his  little  property — the  result  of 
the  honest  earnings  of  a  life  of  toil ;  but  it  is  infinitely 
more  important  in  its  relative  Affects — sundering  him 
from  the  affections  and  consolations  of  a  beloved  wife,  to 
whom  my  learned  friends  wish  to  transfer  all  responsi- 
bility in  this  case — to  the  wile,  and  to  the  mother! — a 
fine  specimen  of  professional  gallantry ! — in  order  that 
they  might  fight  under  a  woman's  'kerchief,  and  convert 
it  into  a  shield.  I  will  show  you  that  this  cannot  avail 
them.  I  wish  you  to  stand  upon  your  guard  in  relation 
to  this  ingenious  suggestion  ;  and  not  to  suppose,  t.hat  it 
originates  in  anything  else  than  the  anxious  desire  of 
these  defendants  to  escape  just  retribution.  There  sit, 
sir,  the  master  spirits,  who,  while  they  stood  behind  the 
scenes  and  governed  others  at  their  will,  never,  from 
first  to  last,  have  been  able  to  show  that  the  wife  of  the 
plaintiff  voluntarily  threw  off  her  allegiance  to  her  hus- 
band. And  if  they  had  been  able  to  show  it,  what  can 
it  avail :  how  does  it  diminish  the  horrors  of  this  scene, 
that  the  plaintiff,  like  the  wounded  bird,  should  discover 
upon  the  shaft  by  which  he  perished,  a  feather  from  his 
own  wing.  This  slander  upon  the  wife  is  an  additional 
aggravation  of  the  outrage  upon  the  husband  ;  and  should 
be  so  considered  and  punished  by  you.  This  is  a  sad 
though  an  awful  mode  of  getting  rid  of  a  prosecution  for 
a  conspiracy.  The  wife  of  course  cannot  be  questioned 
— she  cannot  be  a  witness :  they  have  nothing,  therefore, 
to  do  but  to  throw  out  such  suggestions  against  a  broken- 
hearted woman — broken-hearted  by  them — in  order  to 
escape  responsibility  for  the  ruin  they  have  caused.  For 
I  aver,  that  all  the  difficulties  between  this  husband  and 
wife,  have  been  produced  by  them,  or  some  of  them.  I 
charge  upon  them,  that  it  was  by  their  injudicious  inter- 


268  FORENSIC    SPEECHES    OF    DAVID    PAUL    BROWN. 

meddling,  or  interfering  between  two  hearts,  that  Heaven 
is  presumed  to  have  formed  for  each  other,  that  a  para- 
dise of  conjugal  love  and  affection  was  converted  into  a 
desert.  I  wish  them  to  bear  in  mind,  if  they  can  derive 
no  other  benefit  from  these  admonitions,  the  salutary 
doctrine,  that  those  whom  God  unites,  man  should  never 
attempt  to  sunder.  Why,  sir !  I  profess  to  have  some 
pretty  extensive  knowledge  in  respect  to  matters  of  this 
kind,  though,  thank  Heaven,  no  experience  ;  and  1  take 
leave  to  say,  that  in  *iine  instances  out  of  ten  of  family 
discord,  the  disunion  produced  between  husband  and 
wife,  is  attributable  to  some  cogging,  cozening  knave, 
who,  with  or  without  other  motives  than  the  mere  dispo- 
sition to  do  evil  and  render  others  as  unhappy  as  himself, 
spreads  a  ruin  round :  or  perhaps,  it  may  be  sometimes 
properly  ascribed  to  some  gossipping  old  women,  who 
exercise  the  prescriptive  right  of  sacrificing  human  hap- 
piness by  the  decrees  of  the  Areopagus  of  the  tea-table. 
They  arise  in  this  case  irom  some  such  causes.  And 
their  authors  must  be  gratified  in  having  succeeded  in 
dividing  the  interests  and  joys  of  husband  and  wife,  who, 
in  the  pithy  language  of  the  law,  have  "  two  bodies, 
though  but  one  mind."  Only  sever  that  mind — the  im- 
mortal portion  of  human  beings — what  confusion,  deso- 
lation, distress,  and  destruction,  must  inevitably  be 
produced  ?  All  this,  shocking  as  it  may  appear,  is  to 
be  traced  to  the  defendants  in  this  case,  and  their  con- 
federates. 

You  will  find,  all  these  deplorable  consequences  are 
really  attributable  to  these  defendants.  "Why  what  is 
the  meaning  of  Samuel  Richie's  having  been  out  to  the 
farm  a  year  or  two  before — which  he  himself  expressly 
.admits?  Has  your  honor  lost  sight  of  that?  Richie 
and  others  have  pursued  this  unhappy  plaintiff,  like  a 
vulture  who  never  loses  the  scent  of  blood.  What  does 
he  find  when  he  reaches  the  farm  ?  He  finds  Morgan  as 
eane  as  he,  or  any  man  in  this  community.  He  finds  him 


HINCHMAN   CASE.  269 

deeply  seated  in  the  respect  and  affections  of  a  large  sur- 
rounding neighborhood.  And  he  finds,  also,  that  that 
was  neither  the  time  nor  the  place  to  attempt  an  aggres- 
sion on  the  plaintiff5  s  rights.  He  therefore  returns  to  the 
city,  and  waits  for  a  more  favorable  opportunity  to  renew 
his  attempt.  Opportunities  will  always  be  afforded, 
where  there  is  a  disposition  to  embrace  them,  however 
they  present  themselves. 

I  say,  then,  that  relatively  the  effects  upon  the  plaintiff 
have  been  ruinous  in  sundering  him  from  the  affections 
and  consolations  of  his  wife ;  and  that  these  effects  are 
attributable  to  these  defendants.  His  wife,  has  been  really, 
bodily,  taken  from  him ;  and  my  respectable  friend,  Mr. 
Griscom,  professionally  imbued  with  his  client,  seems  ac- 
tually astonished  that  the  husband,  to  use  the  counsel's 
own  language,  "  should  require  his  wife  for  his  own  pur- 
poses !"  Heaven  save  the  mark ! — whose  purposes  should 
he  want  her  for?  Is  it  not  wonderful  that  a  man 
should  be  taunted  in  a  court  of  justice,  for  desiring  his 
own  wife?  And  was  it  extraordinary  that  he  should  not 
consent  to  live  with  a  sister-in-law — subject  to  her  direc- 
tion and  control,  and  liable  to  be  whisked  off,  at  any  con- 
venient season,  to  the  asylum  again?  The  plaintiff  had 
never  used  his  wife  for  any  other  than  a  kind  and  a  noble 
purpose;  and  therefore  he  was  entitled  to  her  confidence, 
and  I  have  no  doubt,  really  enjoyed  it ;  for  I  maintain 
that  you  cannot  find  in  any  portion  of  this  case,  from 
unquestionable  evidence,  that  she  ever  complained  or 
murmured  against  him. 

But  we  are  referred  to  this  flighty  matter  of  his  at- 
tempting to  hang  himself,  as  related  by  old  Mrs.  Clark ; 
who  admitted  herself  to  be  insane  once  or  twice  during 

o 

her  deposition,  and  who  proved  herself  to  be  insane  in 
every  part  of  it ;  and  who  seemed  to  consider  the  magis- 
trate insane,  for  correctly  reporting  her  testimony. 

"We  find  that  when  Mrs.  Hinchman  was  spoken  to,  and 
the  various  slanders  against  her  husband  repeated,  she 


270  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWN. 

promptly  and  utterly  denies  them,  and  avers  that  they 
are  without  the  shadow  of  a  foundation.  And  this,  too, 
in  the  presence  of  her  sister,  one  of  the  defendants ;  and 
yet,  in  spite  of  this  denial,  Samuel  Richie,  in  speaking 
to  Samuel  Beans,  repeats  them  again. 

[The  opposite  counsel  here  remarked,  that  the  story  of 
the  alleged  hanging  was  not  alluded  to  by  Mrs.  Hinch- 
mari.]  I  did  not  say  that  it  was  expressly  alluded  to ;  but 
I  do  say  that  so  far  as  the  slanders  related  to  misconduct 
or  personal  violence,  she  promptly  and  with  a  womanly 
spirit  utterly  denied  them. 

I  have  already  said  that  the  course  of  these  defendants 
was  obstructive  to  the  happiness  of  the  wife,  as  well  as 
the  husband  ;  but  it  is  still  more  to  be  deplored  in  its 
effects  in  separating  him  from  the  innocent  embraces  of 
his  prattling  children — one  of  whom,  at  least,  he  was 
doomed  never  again  to  see.  Indeed  no  humane  man  can 
listen  to  the  simple  history  of  the  wrongs  he  has  sus- 
tained, the  penalties  he  has  endured,  and  the  sufferings 
he  has  borne,  without  being  convinced  of  the  total  inade- 
quacy of  language  to  embellish  or  exaggerate  it.  The 
plain  statement  presented  to  you  in  the  most  undisguised, 
and  unadorned  shape — for  truth  like  beauty  when  least 
adorned,  is  most  adorned — would  be  sufficient  to  bring 
you,  if  my  sympathies  instruct  me  rightly,  to  a  conclu- 
sion which  would  sweep  away  at  once  all  the  defendants' 
testimony — so  transitory  in  point  of  character,  and  so 
unsubstantial  in  point  of  worth. 

Allow  me  in  the  next  place,  as  a  matter  of  vindication — 
of  what  both  my  learned  friends,  in  their  nice  sense  of 
morality,  have  considered  as  an  anomaly  in  Ethics — to 
refer  to  the  remark  of  my  friend  and  colleague  that  "  the 
effect  of  insanity  in  this  world's  view,  absolutely  and  re- 
latively, was  as  much  to  be  deplored  as  even  that  of 
crime  itself."  You  must  have  observed,  gentlemen  of  the 
jury,  that  Mr.  Gibbons  occupied  a  considerable  time  upon 
this  subject.  It  is  no  doubt,  convenient  to  the  defend- 


HINCHMAN   CASE.  271 

ants'  cause,  to  throw  the  deformities  which  it  exhibits 
into  the  shade,  by  presenting  some  collateral  subjects  on 
which  the  mind  may  more  agreeably  rest.  Both  of  my 
opponents  tell  you,  that  the  remarks  of  my  colleague  are 
utterly  incomprehensible,  if  not  reprehensible,  in  implying 
the  doctrine,  that  the  existence  of  crime  in  a  parent  was 
not  more  to  be  deprecated  than  imputed  insanity.  Now, 
may  it  please  your  honor,  you  seemed  rather  to  adopt 
the  views  of  the  opposite  counsel;  but  if  you  will  hear 
me  for  a  moment  I  will  satisfy  you  of  their  entire  fallacy. 

My  learned  friend  told  you  only  a  melancholy  truth : 
for  although,  when  your  honor  said  there  is  no  crimi- 
nality in  insanity  you  spoke  only  the  sentiment  of  your 
own  excellent  heart — let  us  apply  the  head  to  it.  There 
is  no  criminality  in  insanity,  it  is  true,  and  there  ought  to 
be  no  disgrace ;  but  the  question  is  not  what  ought  to  be, 
but  what  there  z's,  in  this  unkind,  unsympathetic,  and  slan- 
derous world.  The  mere  absence  of  crime  is  no  protec- 
tion against  imputed  insanity  ;  which  may  be  called  the 
curse  of  the  burning  brow — the  curse  of  the  sleepless  eye 
— "  to  have  no  creature  love  you  living,  nor  your  mem- 
ory when  dead." 

Gentlemen  of  the  jury— What  man  among  you  can 
look  at  the  plaintiff  and  behold  his  destitute  and  forlorn 
condition,  and  listen  to  the  simple  story  of  his  sufferings, 
caused  by  the  acts  of  these  men,  and  can  safely  return 
to  his  avocations  till  he  performs  a  solemn  lustration 
through  the  instrumentality  of  their  hoarded  gains? 
What  has  been  his  portion  ?  Shrunk  from  like  a  pesti- 
lence. How  has  he  been  treated  by  these  pious  defend- 
ants, though  certified  to  be  sane  ?  Who  has  taken  him 
by  the  hand  ?  None  but  his  "  paternal  relatives  " — I  bor- 
row the  word.  What  has  been  the  effect  of  the  course 
pursued  towards  him  by  these  defendants?  The  effect 
has  been  to  defame,  to  destroy  him.  I  agree  there  is  no 
crime  in  insanity  ;  but  there  is  obloquy,  worse  than  crime. 
For  although  a  son  may  not  wash  white  the  crimson  gar- 


272  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

ments  of  a  father,  yet  he  is  not  compelled  to  wear  them  ; 
and  he  may  at  least  preserve  his  own  unspotted  and  un- 
stained. 

But  in  such  a  case  as  this,  a  case  of  alleged  insanity, 
do  you  forget  you  poison  the  very  fountain  of  a  man's 
blood — nay,  you  corrupt  the  blood  of  all  united  with 
him ; — his  children  and  his  children's  children,  have  that 
for  an  assured  inheritance!  Speak  not  tome  in  regard 
to  this  being  no  disgrace.  They  all  derive  it  from  him, 
though  it  should  be  their  only  legacy.  He  does  not, 
Saturn-like,  devour  his  own  offspring;  but  he  desecrates 
them,  and  deprives  them  of  all  honorable  and  reputable 
association.  I  speak  to  experience.  Why,  has  not  your 
honor  adverted  to  the  fact,  that  although  our  learned 
opponents  deny  the  doctrine  of  my  colleagues ;  they  prac- 
tically adopt  it,  while  they  maintain  its  fallacy.  Have 
not  the  counsel  even  inquired,  upon  this  trial,  in  the 
cross  examination  of  our  witnesses,  whether  there  was 
not  insanity  among  the  ancestry  or  relatives  of  the  plain- 
tiff? [Defendants'  counsel  here  interrupt — and  assert 
the  question  was  from  the  jury.]  Mr.  Brown  replies. 
"Well  it  was  pursued  and  followed  up  by  the  counsel.  If 
it  came  from  the  jury,  so  much  the  better;  they  have 
practically  adopted  my  doctrines  before  they  were  men- 
tioned. So  may  it  also  be  in  after  days  with  his  helpless 
and  innocent  children — and  his  children's  children — and 
his  name  shall  be  quoted  as  a  living  and  hereditary  curse 
— a  curse  that  more  than  kills — down  to  the  last  syllable 
of  time. 

I  speak  of  this,  and  I  speak  of  it  emphatically,  for  it 
is  like  the  iron  that  enters  the  soul — like  the  worm  that 
never  dies. 

Interrupt  me  gentlemen — I  shall  be  happy  to  answer 
any  suggestion — it  throws  me  into  no  confusion.  I  will 
be  happy  to  hear  any  intimation  that  may  relieve  our 
"friends  "  from  their  uncomfortable  position  ;  and  I  wish 
to  contribute  to  the  benefit  of  these  defendants  them- 


HINCHMAN   CASE.  273 

selves,  by  teaching  them  a  salutary  lesson  of  future  for- 
bearance. Is  further  proof  required  ?  Does  not  Edward 
Richie — mark  me  and  refer  to  your  notes  if  necessary — 
Does  not  Edward,  in  a  conversation  in  relation  to  putting 
property  in  trust  with  the  plaintiff's  "  paternal  relative" 
— I  thank  you  for  teaching  me  that  word — give  as  a  rea- 
son for  the  plaintiff's  executing  a  deed  of  trust — or  for 
his  permitting  L.  Mifflin,  whom  they  had  caused  to  be 
created  a  trustee  of  his  person  and  estate,  to  remain  in 
control  of  matters — that  Morgan  Hinchman  would  hence- 
forth be  suspected  and  mistrusted,  and  thereby  rendered 
virtually  incompetent  to  transact  his  own  business.  That 
must  not  be  lost  sight  of.  Does  he  not  give  as  a  reason, 
the  very  argument  that  his  counsel  have  condemned  ? 
Does  he  not  say,  when  the  plaintiff  comes  into  the  world 
nobody  will  trust  in  him — will  confide  in  him?  He  will 
be  a  mere  object  of  scorn  and  reproach.  But  his  friends 
will  be  able  to  manage  his  property,  take  care  of  his  wife 
and  children,  and  do  all  for  him.  Do  you  remember  that? 

"  They  pluck  out  his  beard — then  throw  it  in  his  face." 
— Extraordinary  sagacity — admirable  charity — unparal- 
leled friendship ! ! 

Again,  my  learned  antagonist,  denying  my  colleague's 
doctrine,  still  tells  you  :  "  after  the  decision  of  Dr.  Kite 
and  committee — the  plaintiff  no  longer  walks  the  streets 
untainted."  Will  that  do?  That  comes  from  the  very 
counsel.  "Well  what  has  that  to  do  with  the  argument  ? 
— their  own  report  ?  Does  that  justify  themselves  in  tramp- 
ling him  into  his  original  earth?  That's  a  hard  doc- 
trine! That's  a  monstrous  doctrine !  May  it  please  your 
honor,  it  is  a  doctrine  that  you  will  never  sanction.  It's 
a  doctrine  this  jury  will  never  be  inclined  to  approve. 
Tainted  how  ?  Why,  by  the  opprobrium  of  insanity. 
Thus  you  perceive  while  they  deny  the  position  assumed 
by  my  colleague,  they  essentially  adopt  it,  as  their  excuse, 
for  exacting  from  an  alleged  lunatic  a  deed  of  trust.  I  am 

amazed !    Brought  up  and  educated  among  them — know? 

18 


1274  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

ing  as  I  supposed  much  about  them — it  seems  to  me  that 
this  is  a  strange  state  of  things.  I  am  not  speaking,  let 
it  be  understood,  of  the  whole  body  now ;  but  they  talk  of 
the  Pope — why  the  Pope's  a  fool  to  a  Quaker  overseer! 
Does  your  honor  know  how  the  vote  is  taken  in  matters 
connected  with  Friends'  Discipline  ?  It  was  indicated  in 
the  progress  of  this  cause:  There  are,  say  150  persons 
present  at  a  meeting — 147  vote  one  way,  the  three  over- 
seers vote  the  other  way — the  clerk  has  nothing  to  do  but 
put  down,  that  the  weight  of  the  meeting  is  against  the 
majority — a  perfect  autocracy,  if  it  was  not  for  its  num- 
ber— it  is  a  divided  though  reserved  power  possessing 
great  and  illimitable  authority.  But  your  honor  remem- 
bers they  did  give  him  a  certificate  of  good  standing, 
recommending  him  to  their  unsuspecting  brethren  of 
Bucks  County — whom  you  have  seen  here  as  witnesses 
on  his  behalf — so  you  see  it  was  the  weight  of  one  meet- 
ing, against  the  weight  of  another  meeting. 

With  your  permission,  I  will  now  endeavor  (having 
vindicated  those  united  with  me  professionally)  to  pre- 
sent to  you,  under  a  hasty  but  orderly  argument,  some  of 
the  characteristic  and  controlling  principles  and  facts  in- 
volved in  the  consideration  of  this  case. 

Before  I  proceed  to  discuss  the  question  of  sanity  in  its 
application  to  the  present  case,  it  is  necessary  that  we 
should  understand  rather  better  than  the  doctors  appear 
to  do,  some  of  those  metaphysical  principles,  not  to  say 
refinements,  which  are  most  intimately  connected  with 
the  immediate  subject  of  our  inquiries.  Now  I  do  not 
profess  to  be  more  than  a  mere  purveyor  of  secondary 
supplies  to  your  honor ;  but  nevertheless,  I  will  give  the 
result  in  fifteen  minutes  of  what  a  personal  examination 
in  detail,  would  occupy  as  many  months. 

It  is  unnecessary  to  remind  the  court — nevertheless  it  is 
not  unworthy  of  your  regard — that  "  man,"  as  the  Bible 
truly  and  divinely  tells  us,  "  is  fearfully  and  wonderfully 
made."  He  is  composed  of  qualities  somewhat  opposite — 


HINCHMAN   CASE.  275 

nay,  directly  so,  if  you  please.  He  consists  of  different 
natures,  marvellously  mixed.  In  his  best  condition — with 
a  sound  mind  every  way  considered,  in  a  sound  body, 
every  way  considered — a  sound  mind  in  regard  to  moral 
influences,  and  in  regard  to  its  intellectual  power — and  a 
solid,  substantial,  and  vigorous  body — man  is  very  little 
short  of  an  angel.  If  the  opposite  exist  in  his  constitu- 
tion, he  is  very  little  short  of  a  demon. 

MIND,  as  I  understand  it,  and  as  I  took  leave  to  say  in 
the  course  of  my  examination  of  Dr.  Evans,  in  reply  to 
his   question — (when    he    turned   cross-examiner,   and   I 
turned  witness) — MIND,  is  a  term  applied  to  the  aggregate 
of  man's  intellectual  mental  powers  and  faculties.     When 
we  speak  of  the  body,  we  speak  of  the  aggregate  of  his 
physical   functions,   organs,   and   faculties.      And   it   is, 
though  I  cannot  dwell  upon  it,  undoubtedly  a  most  in- 
teresting portion  of  this  discussion.     It  is  a  subject,  per- 
haps, in  reference  to  which  there  is  more  anxiety  than  is 
occasioned  by  any  other  in  the  entire  scope  of  what  may 
be  called  metaphysics.     Mind  is  sometimes  confounded 
with  the  soul ;  but,  sir,  it  is  not  the  soul.     Let  us  dis- 
abuse ourselves  on  these  matters.     Mind  is  not  the  soul. 
It  is  one  of  the  qualities  or  attributes  or  constituents  of  the 
soul.   It  belongs  to  it,  it  is  of  it.   It  no  longer,  or  no  further, 
belongs  to  the  body,  than  as  it  employs  the  body  as  a  me- 
dium  of   communication   with   external   things   in   this 
nether  world — otherwise  our  virtues  or  vices  would  not, 
to  any  extent,  depend  upon  our  intelligence.     The  mind's 
own  direct  communication  is  with  its  great  Creator.     The 
mind  is  never  diseased  ;  and  here  I  differ  from  Dr.  Wood, 
and  I  trust  it  is  the  last  occasion  that  I  shall  have  for  a 
difference  with  a  physician  in  that  respect.     A  physician 
knows  nothing  more  about  the  mind,  except  through  the 
medium  of  the  body,  than  he  does  about  the  moon.     But, 
nevertheless,  in  the  line  of  his  duty — like  a  lawyer — it  is 
scarcely  possible  for  him  to  have  intercourse  with  men  in 
their  various   and   different   relations,  without   forming 


276  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

some  conclusions  on  the  subject.  Yet  Dr.  Wood  tells 
you  that  the  mind,  he  thinks  (though  he  does  not  know), 
can  be  diseased,  and  the  body  be  sound.  May  it  please 
your  honor,  that  can  never  be.  The  mind  is  a  ray  or 
emanation  of  the  Deity  himself.  It  is  His  miniature  re- 
semblance, impressed  on  man  !  "  Tis  the  Divinity  which 
stirs  within  us."  If  the  mind  could  be  diseased,  it  fol- 
lows, of  course,  it  could  die ;  and  what  then  becomes  of 
the  sublime  doctrine  of  the  immortality  of  the  soul?  In- 
fidelity and  the  notion  of  total  annihilation  must  take  its 
place.  Nay,  further,  if  the  mind  can  be  diseased,  even 
angels  may  go  mad.  This  doctrine,  impious  as  the 
thought  may  be,  does  not  stop  short  of  the  derangement 
of  the  Sovereign  Ruler  of  the  Universe !  Omnipotence 
himself  could  not  escape ;  for  He  created  man  in  his  own 
image,  and  imparted  to  the  creature  a  ray  of  his  own 
mind.  He  is  the  only  perfect  mind.  If  the  mind — the 
immortal  part  of  man — can  be  affected  with  insanity  ;  in- 
sanity shall  spread  undivided,  and  extend  through  the 
whole  celestial  system — and  Heaven  itself  might  be  con- 
verted into  a  lunatic  asylum. 

The  soul,  of  which  I  have  said  the  mind  is  a  constitu- 
ent, is  the  immortal  principle  which  is  connected  for  a 
time  with  the  material  world,  by  means  of  our  physical 
organization.  We  can  have,  sir,  no  knowledge  of  the  mind 
or  soul,  of  ourselves  ;  I  mean  of  its  source  or  origin — tor 
how  can  finite  measure  infinite :  You  might  as  well 
attempt  to  measure  the  ocean  with  a  thimble.  Our  reason 
cannot  comprehend  it:  it  can  only  be  conceived  of 
through  revelation  and  faith.  The  only  perfect  mind,  as 
lias  been  said,  is  God  himself:  that  great  Mind,  the  source 
and  support  of  all.  "To  see  ourselves,"  in  the  language 
of  Lord  Bacon — and  this  should  be  written  in  characters 
of  gold  ;  "  we  must  not  look  up  ;  we  must  look  down." 
The  mind  is  like  the  eye,  which  sees  not  itself,  but  by 
reflection — by  its  action  on  external  objects ;  by  its  power 
of  receiving  impressions  through  the  physical  faculties. 


HINCHMAN    CASE.  277 

There  is,  sir — and  it  is  very  strange,  passing  strange — 
there  is  a  class  of  materialists  who  have  no  notion  but 
that  the  pineal  gland — which  is  in  the  centre  of  the  struc- 
ture of  the  brain,  of  the  form  of  a  pine  apple,  and  about  the 
size  of  a  pea — inasmuch  as  it  is  a  solitary  organ  or  gland, 
and  all  the  other  organs  of  the  brain  are  coupled  as  all  the 
senses  are  ;  that,  therefore,  I  say,  having — as  far  as  they 
can  discover,  with  all  their  ingenuity,  no  obvious  con- 
nection or  communication  with  the  rest — is  the  peculiar 
abode  or  tenement  of  the  soul.  How  preposterous! 
When  once  we  get  among  these  scientific  enthusiasts,  they 
play  hocus  pocus  with  natural  simplicity.  Though  Shak- 
speare  says  "  the  times  have  been,  that,  when  the  brains 
were  out,  the  man  would  die :"  yet  since  his  time,  science 
has  discovered  that  a  great  part  of  the  brain  may  be  re- 
moved, and  even  the  pineal  gland  itself,  yet  the  mind  or 
soul  remain  perfect !  Certainly  that  goes  to  show  that  it 
is  not  destroyed  by  mere  physical  influences  alone.  The 
brain,  it  is  true,  is  the  organ  of  sensation  ;  the  channel  of 
communication  between  the  physical  and  intellectual 
powers  of  man.  But  the  brain,  though  the  organ  of  sen- 
sation, is  in  itself  perishable,  and  insensible.  Its  wounds 
are  attended  with  no  pain ;  and  yet  the  sensibilities  to 
pain  in  any  other  part  of  the  system  depends  upon  the 
brain  itself.  Only  sever  the  nerve  which  leads  to  it,  from 
the  injured  part,  and  all  consciousness  of  suffering  is  lost. 
Remove  the  brain,  or  a  large  portion  of  it,  the  creature 
may  still  live,  the  soul  still  exist ;  but  the  mind  is  unable 
to  act  upon  external  objects,  as  the  physical  medium  of 
communication  is  gone.  In  short,  I  sum  up  this  doctrine 
by  saying  that  all  minds,  as  minds — and  this  is  consola- 
tory, sir — all  minds  originally,  are  in  their  capacity  alike. 
The  Hottentot,  or  the  idiot,  has  as  much  mind  as  Bacon, 
or  Newton,  or  Milton,  or  Shakspeare — or  even  Dr.  Wood, 
or  Dr.  Evans.  But  your  honor  perceives  what  I  am  coin- 
ing at ;  they  have  not  the  same  physical  susceptibilities ; 
the  warder  is  asleep  at  the  portal  of  the  castle,  and  makes 


278  FORENSIC    SPEECHES   OP   DAVID    PAUL    BROWN. 

no  announcement  to  the  immortal  part  of  man,  of  the 
approach  of  friend  or  foe.     The  mind  has  no  sentinel,  no 
outposts,  no  communication  with  the  external  world,  from 
which  instruction  may  be  derived  as  far  as  regards  the 
temporal  concerns  of  life.     It  is  like,  in  short — what  is  it 
like?     It  is  like  (though  it  is  somewhat  degrading  to  be 
sure),  like  Morgan  Hinchman  within  the  melancholy  walls 
of  the  Frankford   Mad  house.     It   cannot   communicate 
with  anything  outside  ;  nothing  outside  can  communicate 
with  it.    It  is  locked  up  within  its  cell  in  Tartarian  dark- 
ness ;  it  is  not  susceptible  of  instruction  ;  it  is  not  suscep- 
tible of  the  heavenly  light  of  liberty  ;  it  is  not  sensible  of 
anything  but  the  vacuity  of  its  own  solitary  immortality. 
To  give  a  simple  illustration  of  the  perversion  of  thought, 
by  diseased  physical  functions,  I  can  refer  to  a  case  which 
your  honor   has   been  familiar  with — a  remarkable  in- 
stance.    A  man  who  has  had  a  paralysis,  will  either  not 
know  men  with  whom  he  has  been  familiar,  or  will  call 
men  by  wrong  names ;  say  yes,  when  he  means,  no ;  as  was 
tbe  case  with  a   very  learned   and   estimable   friend  of 
yours,  who  when  he  meant  to  affirm  anything,  said  "  no ;" 
and  when  he  would  deny  a  thing,  said  "yes."     Do  you 
suppose  his  mind  was  changed  ?     Not  at  all ;  the  func- 
tions or  faculties  that  joined  him  with  external  matter 
were  destroyed  or  perverted.     [Judge  Burnside  remarks, 
I  made  his  will  for  him,  and  a  very  good   will  it  was. 
Mr.  Brown  replies,  he  was  a  man,  sir,  not  only  good  in 
WILL,  but  in  DEED  ;  it  is  well  he  did    not   fall   into   the 
hands  of  the  defendants.]     In  the  case  of  persons  affected 
with  paralysis,  the  functions  of  the  body,  instead  of  fur- 
nishing the  facilities  for  intercourse  between  the  soul  and 
this  external  world,  are  perverted,  obtunded,  or  destroyed  ; 
"and  the  state  of  man,  like  to  a  little  kingdom,  suffers 
then    the  nature  of  an   insurrection."     Not   that   those 
persons  have  lost  their  mind,  but  that  their  mind  is  mis- 
represented by  the  imperfect  or  diseased,  organs  of  the 
body  ;   which  communicate  false  impressions,  or  convey 


HINCHMAN   CASE.  279 

impressions  falsely.  The  communication  with  the  gov- 
erning principle  being  lost  or  perverted,  every  function  or 
faculty  runs  into  licentiousness  and  confusion  ;  and  all  the 
harmonies  of  the  mental,  moral,  and  physical  structure 
become, 

"  Like  sweet  bells  jangled — 
Out  of  tune,  and  harsh — " 

But  I  pass  on.  I  have  a  word  to  say  as  to  moral  insanity. 
It  is  a  new  theory — who  understands  it — emotional  in- 
sanity !  Has  not  your  honor  been  astonished  by  this  doc- 
trine ?  Why  it  is  like  some  of  the  French  dancing ;  it 
is  like  what  Addison  calls  a  "  regular  confusion ;"  it  is 
like  the  polka ;  it  is  like  all  the  frippery,  sir,  of  the 
French  schools — though  I  am  an  admirer  of  them — full 
of  phantastic  inventions !  They  are  full  of  jimcrackery — 
moral  insanity!  Our  friends,  are  plain  citizens,  grave 
men — they  ought  to  look  before  they  leap,  or  they  will 
fall  into  mazes,  from  which  even  Ariadne's  clue  could 
never  extricate  them.  Why  it's  neither  fish,  flesh,  nor 
red  herring !  but  something  among  them  all !  I  will  tell 
you  what  moral  insanity  is — it  is  that  corruption  of  the 
moral  faculties  which  is  the  result  of  long  continued 
crime,  becoming,  by  habit,  too  strong  for  rational  or  con- 
scientious control.  That's  what  it  is ;  and  that  is  not  a 
matter  which  puts  a  man  in  the  mad-house,  it  puts  him 
in  the  penitentiary.  I  believe  Dr.  Wood  said  that  moral 
insanity  often  exists  without  intellectual — and  without 
the  body  being  diseased.  How  can  that  be?  there  is  no 
moral  insanity,  unless  it  affect  the  immortal  mind :  talk- 
ing of  morals  without  mind  is  ridiculous — perfectly  ri- 
diculous. You  might  as  well  talk  of  the  morals  of  a 
dead  body.  Moral  insanity  is  nothing  more  than  a  di- 
vision formed  by  metaphysicians,  of  intellectual  insanity. 
They  place  it  in  the  heart,  because  the  heart  is  termed 
the  throne  of  the  passions ;  they  don't  allow  it  to  be  at- 
tributed to  the  head  or  the  mind,  without  which  man's 


280  FORENSIC    SPEECHES   OF   DAVID    PAUL   BROWN. 

affections  or  passions  are  nothing  at  all !  I  have  thought 
proper  to  advert  to  these  things,  because  they  are  inter- 
esting ;  and  not  altogether  unimportant  in  the  use  that  is 
given  them.  I  must  shortly  advert  to  a  more  admirable 
science,  which  I  trust  we  understand  quite  as  well. 
Though  before  passing  on,  permit  me  to  say  I  have 
been  disappointed !  surprised !  confounded  !  at  the  sequel 
of  that  magnificent  volume  whose  preface  promised  so 
much  wisdom.  I  did  suppose,  that  the  gentleman  who 
could  write  such  a  romantic  history  of  the  deer  parks 
and  flower  gardens  of  an  asylum,  might  have  devoted 
some  portion  of  his  leisure  to  metaphysical  pursuits — 
"utile  cum  dulce" — which  would  have  appeared  to  much 
better  advantage  when  exhibited  on  this  occasion. 

Having  thus  cursorily  discussed  the  metaphysical  por- 
tion of  this  question,  the  next  subject  in  order,  and  more 
important,  though  not  more  interesting,  is  THE  LAW — the 
greatest  of  all  earthly  sciences,  and  embracing  quite  as 
much  metaphysics,  quite  as  much  of  the  important  rela- 
tions of  every  earthly  science,  as  any  other.  It  is  the 
QUEEN  of  the  temporal  sciences  ;  those  that  are  directed 
to  explain  the  knowledge  of  the  Creator,  are  above  com- 
parison— above  ROYALTY. 

Now,  it  will  be  my  duty,  and  I  hope  my  learned  oppo- 
nents will  pardon  me,  to  show — not  that  they  are  quite 
as  much  misled  as  the  doctors  themselves,  in  what  they 
deem  their  peculiar  province,  but  that  they  are  very 
egregiously  mistaken.  Indeed  I  thought  they  might  for 
a  time,  have  led  your  honor  into  their  views,  until  by 
accident  they  stumbled  upon  the  case  reported  in  Binney 
— which  promulgated  the  doctrine  of  want  of  probable 
cause  and  malice — which  doctrine  I  aver  to  you  has,  so 
far  as  the  purposes  of  our  present  inquiries  go,  no  more 
to  do  with  it  than  the  Copernicau  system.  They  make 
that  their  defence — their  turning  point ;  and  if  I  take 
that  poor  refuge  away — dispel  that  delusion— they  have 
no  pillow  upon  which  to  rest  their  disconsolate  heads. 


HIKCHMAN    CASE.  281 

Didn't  you  observe  that  our  learned  friends  "  caught  a 
Tartar,"  in  reading  the  authority  referred  to.  It  was  read 
for  one  purpose,  but  unfortunately  it  has  in  it  a  principle 
which  destroys  the  whole  defence.  Now,  sir,  although  the 
observation  is  not  remarkable  for  its  modesty— for  which 
lawyers  you  know  are  remarkable ;  nevertheless,  I  may 
be  permitted  to  say,  that  I  profess  t<?  understand  the  doc- 
trine which  has  been  applied  to  this  branch  of  the  case 
as  fully  as  it  can  be  understood — for  that  requires  no 
Solomon.  I  understand  it,  and  your  honor  understands 
it;  and  by  comparing  notes  we  shall  all  understand  it 
better.  Now,  sir,  what  is  a  conspiracy? — because  we 
must  begin  here — there  is  no  managing  an  argument  by 
jumping  into  the  middle  of  it.  A  conspiracy,  gentlemen 
of  the  jury,  is  not  half  so  complicated  as  you  might  sup- 
pose. It  is  the  agreement  of  two  or  more  persons  to  do 
an  unlawful  act;  or  it  is  an  agreement  of  an  equal  num- 
ber of  persons — that  is,  two  or  more — to  do  a  lawful  act 
in  an  unlawful  manner.  To  show  you  what  is  necessary 
to  establish  a  conspiracy,  though  I  don't  wish  to  pause  to 
read  books,  I  refer  you  to  2  Russell,  p.  697,  edition  of 
1845.  I  don't  intend  to  read  it,  because  your  honor  un- 
derstands it  as  well  as  Mr.  Russell ;  but  it  is  sometimes  a 
facility  to  give  you  the  page,  which  may  save  you  the 
trouble  of  research.  Now  allow  me  to  tell  you  that  any 
person  who  is  art  or  part,  either  in  doing,  or  conspiring  to 
do,  an  unlawful  act;  or  is  art  or  part  in  adopting  an  un- 
lawful manner  of  doing  a  lawful  act,  is  a  conspirator. 

It  is  not  necessary,  as  his  honor  will  tell  you,  that  an 
act  should  be  done.  I  am  now  speaking  of  the  criminal 
character  of  conspiracy.  It  is  not  necessary  that  an  act 
should  be  done  at  all.  Nay,  if  the  act  be  a  felony,  the 
conspiracy  is  lost  utterly  ;  for  being  but  a  misdemeanor  it 
is  merged  in  the  graver  offence.  It  is  the  agreement  to  do 
the  act  which  constitutes  the  crime.  Your  honor  will 
perceive  the  beautiful  philosophy  of  the  law — not  like 
the  metaphysical  moonshine  that  is  introduced  here. 


282  FORENSIC   SPEECHES   OP   DAVID   PAUL    BROWN. 

The  whole  law,  and  especially  the  criminal  law,  consists 
of  a  system  of  checks  and  safeguards.  It  is  the  protec- 
tion of  the  community  against  vice — and  subserves  the 
daine  law  in  forming,  guarding  and  inducing  virtue,  in 
man.  That  is  the  basis  of  it — build  upon  that— the  ob- 
ject is  not  to  punish  ;  the  object  is  to  prevent  or  reform. 
What  does  it  do  ?  As  long  as  man  keeps  his  design 
within  his  heart — within  his  breast — though  it  be  of  de- 
moniac gloom  and  blackness,  of  course  human  tribunals 
cannot  suspect  it,  and  cannot  affect  it.  He  is  left  to  the 
punishment  of  the  Omnipotent ;  "  for  darkness  and  light 
are  both  alike  to  Him."  He  alone  can  pry  into  the  deep 
recesses  of  the  sinner's  bosom  ;  drag  forth  the  secret  mo- 
tive from  its  hiding  place,  and  expose  it  to  the  reproaches 
of  an  affrighted  and  horror-stricken  world.  What  can 
man  do  in  such  a  case?  I  can  tell  you  what  he  can  do, 
and  what  he  does  do.  The  moment  that,  by  the  slightest 
whisper,  the  inward  workings  and  purposes  of  the  culprit's 
mind  are  communicated  to  the  officer  of  justice,  he  be- 
comes amenable  to  justice.  Beautiful  system!  Here  is  a 
man  who  intends  to  take  the  life  of  another  ;  his  motive 
and  his  purpose  are  known  only  to  that  powe,r  that  can 
fathom  the  ocean.  The  motive  there  is  equal  to  the  act 
— it  is  the  act  itself.  The  motive  here  is  nothing,  till  it  be 
accompanied  by  the  act ;  because  it  cannot  be  detected. 
If  a  man  having  the  design,  simply  say,  I  will  take  the 
life  of  A.  B.  (though  he  may  have  been  plotting  it 
for  years),  he  is  taken  before  a  judicial  officer  and  is 
bound  over ;  the  incipient  impress  of  the  devil  is  detec- 
ted in  him.  .Upon  this  system  of  checks,  the  guilty  pur- 
pose is  noticed,  and  he  is  prevented  from  sinking  lower  in 
the  gulf  of  crime.  He  is  not  punished,  for  he  cannot 
be  indicted  ;  he  has  done  no  act ;  he  cannot  be  indicted 
for  saying  he  will  do  a  thing;  he  is  only  bound  over  to 
keep  the  peace ;  no  laws  go  farther.  But  still  observe 
the  admirable  system  of  the  law.:  the  moment  he  com- 
municates that  design  to  Mr.  Richie;  and  Mr.  Richie 


HINCHMAN  CASE.  283 

unites  with  him  in  the  design  ;  and  that  becomes  known 
— though  they  do  not  take  a  single  step  towards  it — they 
are  both  subject  to  be  indicted  and  punished  for  an  infa- 
mous crime.  See  how  the  law  checks  the  downward 
course  of  guilt. 

The  action  on  the  case,  in  the  nature  of  a  writ  of  con- 
spiracy, is  one  of  our  ancient  inheritances.  It  has  noth- 
ing to  do  with  the  doctrine  of  criminal  conspiracy. 

!Nbw,  sir,  to  the  difference  which  your  honor  has  some- 
what anticipated.  In  a  criminal  court,  the  mere  agree- 
ment, without  any  act,  can  be  punished  and  has  been 
punished  a  thousand  times.  In  a  civil  court,  the  mere 
agreement  without  any  act,  cannot  be  noticed.  I  ask 
your  ratification  (his  honor  nods),  you  will  give  it ;  I 
have  only  to  suggest  it.  How  can  you  punish  it  in  a 
civil  court  ?  You  proceed  for  damages,  if  a  man  has  con- 
spired in  malice.  If  two  persons  have  agreed  corruptly 
together,  and  institute  proceedings  before  a  magistrate, 
that  is  the  overt  act.  They  may  be  punished  in  a  civil 
court,  because  it  produces  injury ;  but  as  long  as  the  con- 
spiracy rests  as  a  naked  conspiracy — a  mere  agreement — so 
long  it  is  not  punishable  in  any  way  by  a  civil  tribunal. 
It  is  not  there  actionable  at  all.  But  to  make  it  so,  it  is 
necessary  some  injurious  act  should  be  done.  Now,  sir, 
what  is  the  force  of  the  case  of  Munns  and  Dupont,  and 
the  two  cases  quoted  by  my  learned  opponent,  Mr.  Gris- 
com — who  certainly  said  as  much  as  could  have  been  said 
in  a  bad  cause.  They  have  no  importance  at  all,  permit 
me  to  say.  They  have  not  a  particle  more  to  do  with 
this  issue,  than  with  the  law  in  relation  to  ejectments ;  or 
any  other  utterly  irrelative  matter. 

I  say,  may  it  please  your  honor,  that  the  whole  of  this 
doctrine  is  settled  in  a  work  adverted  to,  but  not  fully 
read,  by  my  learned  friend,  Mr.  Perkins — the  best  work 
known  to  the  law — I  refer  to,  1st  Williams' Saunders,  page 
230.  If  your  honor  will  permit  it  to  be  handed  to  you, 
you  will  tind  at  page  230  (in  the  notes  which  consist  of 


284  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

some  two  or  three  pages  in  the  case  of  Skinner  v.  Gunton 
and  Lyon),  the  whole  doctrine  most  admirably  laid  down, 
with  all  the  necessary  references  and  authorities.  There 
is  one  feature  that  may  strike  you,  as  a  little  remark- 
able: though  your  honor  is  a  ripe  and  experienced  law- 
yer, these  things  do  not  always  occur  in  the  practice  of 
one  short  life.  You  know  that  in  an  action  on  the  case, 
in  the  nature  of  a  writ  of  conspiracy,  you  can  convict 
one  person,  where  there  are  but  two  charged.  Go  into  a 
criminal  court,  indict  two  persons  for  a  conspiracy,  for 
the  purpose  of  testing  this  matter — acquit  one — and  you 
acquit  the  other.  Does  not  that  satisfy  any  man  of  the 
distinction  between  the  character  of  the  two  cases ;  and 
to  show  your  honor  the  soundness  of  the  doctrine,  I  pre- 
sent to  you  a  very  brief  reference  to  Buller's  iftsi  Prius, 
page  14:  k<  If  the  action  be  brought  against  several,  and 
one  only  be  found  guilty,  it  is  sufficient.  There  is  con- 
siderable difference  between  this  form  of  action  on  the 
case,  and  the  old  writ  of  conspiracy."  If  I  were  to  read 
all  day,  I  should  only  come  to  the  same  result.  I'm  not 
in  favor  of  reading  books  in  public  places ;  a  man's  study 
is  perhaps  the  best  place  ;  but  I'll  just'  refer  to  page  230 
of  the  same  book,  which  has  been  alluded  to — Williams' 
Saunders,  page  230 — in  refutation  of  their  entire  doctrine 
in  respect  to  civil  actions  for  conspiracy,  sounding  in 
damages.  In  criminal  cases,  the  conspiracy  to  do  a  wrong 
is  punishable,  although  the  wrong  be  not  accomplished  ; 
but  in  civil  cases,  twenty  thousand  conspiracies  amount 
to  nothing,  without  positive,  or  constructive  injury,  to  the 
party.  The  injury,  therefore,  is  the  ground  of  the  action, 
although  the  confederacy  may  be  matter  of  aggravation. 

In  a  criminal  case,  I  repeat  it,  at  least  two  must  con- 
spire, and  one  cannot  be  convicted  without  the  other.  In 
a  civil  case,  a  verdict  may  be  found  against  ,any  one,  or  all 
of  the  defendants. 

This  is  "  Crowner's  Quest  Law,"  and  every  tyro,  or  neo- 
phyte, is  bound  to  know  it. 


HINCHMAN   CASE.  285 

But  they  contend  we  are  obliged  to  prove  malice,  and 
want  of  probable  cause,  as  well  as 'confederacy.  That  I 
will  defeat  just  as  readily  as  the  other  position  they  have 
ventured  to  assume.  Not,  that  it  is  very  important,  for 
they  are  both  proved  here,  as  I  shall  satisfy  you,  ere  I 
have  done  with  the  case.  But  it  is  not  necessary  that 
either  should  be  proved,  as  they  are. inherent  to  the  act 
•itself. 

The  act  itself  sufficiently  implies  malice.  The  operation 
of  the  theory — as  your  honor  will  perceive  with  your  per- 
spicacity— is  that  these  defendants  cannot  get  relief  from 
rumors  that  they  themselves  put  in  circulation.  Malice 
is  no  where  more  necessary  than  in  murder;  yet,  if — ac- 
cording to  the  Spanish  custom  in  some  of  the  West  India 
Islands — a  felon  runs  a  muck;  and  strikes  dead  any  or 
every  other  man  in  his  way,  for  the  gratification  of  some 
demoniacal  principle,  or  some  fanatical  impulse,  and  he  is 
arrested  and  brought  before  a  judicial  tribunal  to  answer 
for  his  deeds — must  I  prove  malice  ?  Why,  sir,  I  have 
nothing  to  do  but  to  point  to  the  dead  body — to  hold  up 
the  bloody  dagger — and  all  nature  with  her  thousand 
voices  exclaims,  malice ! — malice ! ! — malice ! ! ! — and  the 
matter's  done — the  question's  settled.  It  is  no  answer  to 
say — one  of  the  victims  was  his  twin  brother,  sprung  from 
the  same  loins,  with  whom  he  had  always  been  on  the 
most  intimate  terras ;  and  another  was  a  man  he  never 
knew  or  saw — and  could  he  entertain  malice?  The  law 
says  your  acts — and  it  is  not  necessary  to  go  beyond  them 
— speak  of  malice,  "  and  manifest  a  heart  regardless  of 
social  duty  and  fatally  bent  upon  mischief."  It's  no  an- 
swer to  say  he  was  ignorant  of  the  law.  Ignorance  of  the 
law  excu=es  no  man.  Malice  is  not  always  confined  to 
the  blood-thirsty,  or  hasty  in  disposition.  It  sometimes 
contrives  its  snares  in  secret,  and  watches  long  years  for 
its  opportunity  to  revenge  some  fancied  slight  or  unfor- 
given  oft'ence  ;  and  sometimes  it  is  a  reckless,  careless  in- 
difference to  the  just  rights  of  our  fellow  men.  In  some 


286  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

instances  this  may  be  culpable ;  and  the  law  says  to  the 
culprit — your  felon  hand  was  directed  against  all  laws, 
human  and  divine,  as  well  as  against  the  ordinary  light 
of  reason,  and  you  must  expiate  your  offence  upon  the 
gallows ! 

There  is  a  wide  distinction  between  the  case  cited  by 
our  learned  opponents,  and  the  case  we  are  engaged  in 
adjudicating:  a  difference  very  interesting,  very  import- 
ant, and  easily  distinguished.  The  case  they  quoted,  was 
an  action  for  malicious  prosecution  ;  to  which  the  doctrine 
of  malice,  and  want  of  probable  cause,  is  applicable.  Here 
it  is  not  necessary  to  be  proved.  Why,  your  honor  knows 
it  is  not  necessary  to  prove  anything  in  connection  with 
slanderous  words — in  themselves  actionable.  The  action 
for  malicious  prosecution  (to  which  their  argument  is 
solely  applicable),  is  brought  against  those,  who  have 
sought  to  punish  the  plaintiff,  by  resorting  to  legal  pro- 
cess. Then  the  law  takes  care  of  its  own.  In  the  case  of 
Munns  and  Dupont — and  a  thousand  other  cases  that 
might  be  mentioned — the  law  says :  you  have  appealed  to 
the  law — you  have  made  oath — you  have  issued  your 
warrant — you  have  arrested  this  man — brought  him  to 
trial,  and  it  happens  either  by  mischance,  accident,  or  in 
some  way,  the  charge  fails,  and  he  escapes  ;  but  it  is  con- 
trary to  the  policy  of  the  law  that  he  should  turn  upon 
his  pursuer.  In  such  a  case  the  law  presumes  there  was 
no  malice.  I  won't  allow — says  Justice — my  temple  to 
be  converted  into  an  arena,  for  conflict  between  a  man 
who  has  prosecuted,  according  to  law,  from  good  and  al- 
lowable motives,  and  the  person  who  for  want  of  proof, 
has  escaped  by  the  clemency  or  charity  of  the  law.  I 
won't — says  Justice — raise  a  presumption  against  an  indi- 
vidual who  has  resorted  for  protection  to  my  hallowed 
temples.  We  presume  everything  in  favor  of  the  man  who 
confides  in  the  law.  Now  I  am  sure  I  make  myself  under- 
stood. But,  may  it  please  your  honor,  it  is  a  widely  dif- 
ferent matter,  when  ^instead  of  proceeding  under  the  law,  a 


HINCHMAN   CASE.  287 

body  of  men  take  the  law  info  their  own  hands.  It  is  only 
the  man  who  wields  the  SWORD  of  the  law,  that  enjoys  protec- 
tion from  the  SHIELD  of  the  law.  That  is  the  sum  total  of 
the  whole  doctrine.  The  men  who  employ  their  own 
swords,  or  their  private  daggers,  for  their  private  purposes — 
defying  the  law,  and  trampling  upon  it— appeal  in  vain,  in 
their  extremity,  for  the  application  of  those  principles, 
that  they  only  are  entitled  to,  whose  resort  has  been  to  legal 
means.  Show  me  a  case,  sir,  in  which  the  want  of  prob- 
able cause,  or  malice — as  being  necessary  to  be  proved — 
ever  arose,  where  the  original  arrest  was  an  illegal  one ! 
Shall  it  be  tolerated,  may  it  please  your  honor — to  bring 
this  suggestion  closely  upon  the  heels  of  these  defendants 
— that  half  a  dozen  men  shall  seize  you,  without  oath  or 
warrant,  with  impunity  (while  half  a  dozen  of  their  con- 
federates shall  watch  for  you  in  the  neighborhood)  and 
bear  you  away  to  a  private  mad-house  ?  Why,  what  said 
Mr.  Allen,  one  of  these  managers,  produced  here  as  a  wit- 
ness for  these  defendants — and  who,  by-the-by,  seems  as 
cold  and  heartless  as  the  marble  mortar  he  has  so  long 
pounded  with  his  pestle  ?  Having  been  brought  up  in 
his  drug  shop  among  preserved  reptiles,  and  "  alligators 
stufted,"  he  seems  to  have  imbibed  some  portion  of  the 
venom,  that  once  actuated  his  companions.  He  says,  in 
answer  to  your  honor's  inquiry,  that  on  the  mere  certifi- 
cate of  any  doctor  whatever,  no  matter  how  obtained,  he 
would  consign  me,  or  any  one  of  the  hundreds  in  this 
court  room,  to  incarceration  in  this  private  prison  near 
Frankford.  Yes,  on  his  affirmation,  he  declares  he 
would  !  He  did  not  blink  the  question — take  us  all ! 
Remember  this,  gentlemen  of  the  jury.  (Defendants' 
counsel  remind  Mr.  Brown  that  the  witness  said  he 
would  require  a  bond.)  Mr.  B.  continues:  Yes,  a  bond 
of  indemnity — a  bond  to  pay  three  or  six  dollars  a  week. 
What  do  they  care  for  the  law  ?  All  he  cares  for  is  the 
bond  ;  that's  right,  old  Shylock, — stick  to  "  the  bond." 
And  shall  we  now  be  told— will  any  man  maintain, 


288  FORENSIC    SPEECHES   OF    DAVID   PAUL   BROWN. 

when  such  men  are  brought  into  a  court  of  justice — that 
they  may  fold  their  arms  and  say,  "  Well,  here  we  are, 
now  you  must  prove  a  want  of  probable  cause,  and  malice  ; 
you  never  saw  some  of  us  before  !  No  !  (says  the  law)  I 
don't  know  you ;  you  are  outlaws  ;  you  are  not  the  chil- 
dren of  the  law  :  the  presumptions  of  the  law  are  not 
in  favor  of  you,  but  they  are  against  you — and  all  your 
kith,  kin,  kidney,  and  companions.  That,  I  understand, 
is  the  doctrine  to  be  applied  to  this  arrest ;  which  was 
not  committed  under  authority,  but  in  open,  direct, 
bold,  barefaced  violation  of  that  law,  which  is  your  pro- 
tection and  mine — nay,  which  is  also  the  protection  of 
these  very  defendants  ;  resembling,  in  that  respect,  the 
beneficence  of  the  sun  of  Heaven,  which  smiles  alike  upon 
the  poor  and  the  rich,  the  weak  and  the  powerful,  the 
oppressed  and  their  oppressors.  The  law  is  the  protec- 
tion of  the  very  men  who  have  ventured  to  violate  it ; 
and  it  will  be  a  dark  day  for  them  if  the  principles  could 
be  established  that  they  now  contend  for.  They  would 
be  among  the  first  to  feel  the  effects  of  that  whirlwind  of 
passion,  that  would  inevitably  break  forth.  Let  them  be- 
ware how  they  ask  your  sanction  to  a  doctrine  that  will 
destroy  those  great  ties,  that  bind  together  and  protect 
society.  They  know  not  how  soon,  in  the  circling 
changes  of  life,  they  may  be  subject  to  its  application. 
The  prosperous  of  to-d;iy — pass  but  a  few  years — are 
oitimes  the  lowly :  seeking  the  shelter  of  that  very  law 
which  throws  its  impartial  protection  over  its  meanest 
subjects.  Such  is  the  beneficence,  the  wisdom  of  the  law 
— such  the  justice  of  the  law  ;  which  is  but  the  handmaid 
of  that  divine  law  whidh  flows  from  the  throne  or  seat 
of  God  himself. 

Now,  sir,  I  will  show  you  with  a  single  authority,  that 
the  decision  is  as  I  have  stated  ;  and  that  is  the  one  which 
my  friend  ran  afoul  of.  It  is  the  opinion  of  one  of  the 
best  men  that  ever  sat  on  the  bench  ;  and  perhaps  as 
bright  as  any  other.  It  will  be  found  page  172  of  1st 


HINCHMAN   CASE.  289 

Binney.  "It  seems  that  in  an  action  on  the  case  in  the 
nature  of  conspiracy,  it  is  not  necessary  to  declare,  that 
the  conspiracy  was  without  probable  cause."  Here,  too, 
was  a  regular  and  formal  charge,  preferred  in  the  form 
of  an  affidavit,  in  a  legitimate  tribunal.  I  ask  them  to 

7  O 

show  me  any  case,  where  the  arrest  was  without  au- 
thority, in  which  anything  was  said  about  probable 
cause.  It  would  be  converting  the  temple  of  justice  into 
a  private  arena  for  gladitors,  "  The  defendant's  counsel 
have  based  their  arguments  on  the  first  point  (i.  e.,  in  re- 
gard to  probable  cause),  on  this  position,  that  the  analogy 
between  actions  for  a  malicious  prosecution  and  the  pres- 
ent action  is  so  great  as  to  warrant  the  conclusion  that 
the  declarations  should  be  alike,  in  alleging  the  want  of 
probable  cause.  There  is,  however,  a  considerable  differ- 
ence between  these  actions.  The  action  for  malicious 
prosecution  being  founded  on  a  malicious  proceeding  by 
the  defendant  in  a  court  of  justice,  there  is  more  reasou 
for  alleging  and  proving  in  that  action,  than  in  this,  that 
there  wa^  no  probable  cause  for  the  prosecution ;  for 
where  legal  process  is  issued,  the  presumption,  prima 
facie,  must  be,  that  the  proceeding  was  proper." 

We  presume  malice,  prima  facie,  and  put  it  upon  the 
opposite  party  to  remove  the  presumption,  by  proving 
probable  cause,  and  want  of  malice.  There  is  no  use  of 
a  man's  enjoying  the  benefit  of  the  presumption  of  the 
law,  if  he  is  bound  to  prove  it.  The  character  of  the  pre- 
sumption throws  the  necessity  for  exculpatory  proof  on 
the  opposite  party.  What  they  have  to  do  is,  not  to 
call  on  us  to  prove  all  that  took  place  in  their  orgies  ;  in 
their  different  meetings  ;  in  their  grand  divans,  in  which 
the  plot  to  cleave  down  this  man's  liberty  was  laid.  Let 
them  show  anything  calculated  to  justify  them  ;  for  noth- 
ing short  of  justification  answers  in  the  pleadings  of  this 
case.  Let  them  even  show  anything  to  mitigate  the 
offence,  and  not  resort  to  matters  of  this  sort.  They 
presume  their  victim  insane,  and  want  us  to  prove  all 

19 


290  FORENSIC   SPEECHES    OF   DAVID   PAUL   BROWN. 

that  took  place  in  their  secret  meetings.     It  is  out  of  the 
question.     It  cannot  be. 

(Judge  B.  Suppose  the  jury  be  of  the  opinion  that  the 
man  was  in  a  state  of  partial  insanity,  and  this  man  was 
arrested  from  pure  motives,  and  not  with  a  view  to  pe- 
cuniary gain?) 

My  answer  is  this — (because  it  must  ba  qualified)  if 
that  partial  insanity  were  of  such  a  character  as  to  render 
the  arrest  imperative,  in  order  to  the  protection  of  life  or 
limb ;  or  to  forestall  impending  danger ;  then  I  hold  them 
excused.  But  would  your  honor  apply  it  to  the  case  of 
a  harmless-  and  unoffending  citizen,  who  for  seven  years, 
under  the  very  eyes  of  these  men,  and  from  their  bands, 
receives  certficates  of  competency  and  sufficiency  ?  Why 
they  never  doubt  his  sanity,  until  he  gets  money  ;  until 
the  trust  was  revoked.  I  do  not  mean  to  say  that  where 
the  man  is  raving,  you  should  not  be  permitted  to  arrest 
him,  for  his  benefit  or  for  the  safety  of  the  community  ; 
nor  do  I  mean  to  say  that  it  necessarily  follows  that  you 
do  a  wrong  act  where  you  arrest  him  without  a  warrant ; 
but  I  do  mean  to  say  that  when  you  do  arrest  him,  you 
must  make  good  the  charge.  If  you  do  it,  you  do  it  at 
your  peril.  Do  it  in  a  legal  mode,  the  law  is  your  shield 
— but  don't  go  into  the  highways  and  by-ways,  to  seek 
evidence,  which,  if  true,  was  utterly  unknown  to  you  at 
the  time.  "What  your  motives  are,  you  best  know : 
prove  that  yourselves!  Show  there  was  an  actual  neces- 
sity. Show  the  man  was  guilty — show  he  was  insane — 
show  why  the  character  of  his  guilt,  or  insanity,  required 
this  disregard  of  the  law.  Show  that  there  was  no  time 

o 

to  take  him  with  authority.  All  these  enter  into  the  ap- 
plication of  the  principle.  One  of  these  points  is  decided 
in  the  case  at  p.  452,  "Watt's  Reports ;  where  the  doctrine 
is  fully  laid  down.  But  where  the  man  has  a  known 
residence  where  he  may  be  found ;  shall  he  be  waylaid  and 
arrested,  without  authority  ?  Why,  may  it  please  your 
honor,  this  would  be  the  most  hazardous  doctrine  that 


HINCHMAN   CASE.  291 

ever  was  known.  You  may  not  arrest  a  man  without 
cause. 

A  police  officer  may  arrest ;  but  let  him  look  to  the  bill 
of  rights,  and  not  break  down  the  constitutional  protec- 
tion of  the  citizens,  for  the  purpose  of  meeting  fancied  exi- 
gencies. If,  on  the  contrary,  you  proceed,  on  your  own 
responsibility — with  the  intimation  *that  you  must  abide 
the  consequences — must  doit  at  your  peril— then  you  will 
do  it  only  when  you  feel  secured.  Why,  sir,  the  king  of 
England  himself —  I  don't  know  what  the  queen  might 
do,  for  women  assume  many  responsibilities, — the  king 
would  not  dare  to  do  what  our  puritanical  and  peace- 
ful Friends  have  done.  Does  it  not  strike  you  all  with 
astonishment,  that  the  descendants  of  Penn — as  Mr.  Gib- 
bons called  them — and  the  great-grandfathers  of  Perm — 
as  my  friend  Griscom  has  considered  them — (Mr.  Griscom 
interrupts,  and  says  it  was  great-grandchildren)  no — let 
it  be  grandfathers,  for  the  other  is  not  ancient  enough 
for  prescription — is  it  not  wonderful,  sir,  that  the  first 
offence  of  this  kind  (for  aught  we  know)  should  be  perpe- 
trated by  the  peaceful — the  pious — the  professed  lovers  of 
the  meek  arid  lowly  Saviour ;  and  that  Mr.  Gibbons,  who 
seems  to  misunderstand  the  application  of  the  doctrine  to 
this  case — 

("  Hear  it,  ye  heavens,  and  wonder  while  ye  hear  it,") 

should  compare  these  gentlemen  to  the  good  Samaritan, 
who  found  a  wounded  traveller  upon  the  wayside,  and 
poured  oil  and  balm  into  his  wounds?  He  made  a  mis- 
take ;  they  were  the  highwaymen  that  wounded  the  travel- 
ler. There  is  the  difficulty,  and  all  the  trouble  we  have 
is  in  the  proper  application  of  the  text.  Who  wounded 
him  but  themselves?  What  oil  and  balm  did  they  pour 
into  his  lacerated  heart  ?  Was  it  balm,  to  withdraw  him 
from  his  children's  consolations ;  to  sever  him  from  his 
wife;  to  imprison  him,  and  doom  him  night  after  night 


292  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWN. 

to  his  melancholy  cell ;  to  interrupt  him  hour  after  hour 
during  the  period  allowed  to  sleep — if  such  a  man  could 
sleep  in  such  a  situation  ?  They  tell  you  in  the  next 
breath  that  he  requires  repose  ;  and  for  that  purpose  they 
put  him  in  a  cell  where  he  is  awakened  every  hour! 
Admirable  consistency  ! 

First  impressions  are  correct :  and  when  your  honor 
said  you  could  not  trust  yourself  to  speak  of  this  case  as 
ybu  felt,  you  could  hardly  restrain  your  indignation — it 
was  your  first  impression.  Resort  may  be  had  to  ingeni- 
ous suggestions,  and  escape  may  be  hoped  for ;  but  when- 
ever you  find  them  ensconcing  themselves  behind  the 
arras,  there  is  some  mischief!  According  to  the  Spanish 
proverb:  when  you  find  a  man  who  wears  a  long  cloak 
you  cannot  tell  what  it  conceals,  it  is  true,  but  you  may 
know  from  the  cloak  itself  that  it  is  evil.  That  is  sound 
reason — here  they  all  are  cloaking  together.  When  I 
come  to  another  part  of  the  case,  I  will  show  you  that 
there  never  was  a  more  fantastic  defence,  than  that  which 
was  exhibited  here,  if  I  understand  it.  Why,  don't  you 
perceive  that  this  defence  never  existed — even  in  fancy — 
until  after  the  action  was  brought  ? 

The  defence,  in  order  to  exist  availingly,  should  have 
existed  before — look  at  that.  By  sounding  the  trumpet 
of  a  retreating  army,  they  can  gather  all  the  stragglers. 
Notwithstanding  they  fought  him  out  of  his  pocket,  they 
did  not  stop  there — thus  showing  their  malice  and  hatred 
— they  fought  him  after  he  was  declared  to  he  sane. 
They  pay  a  lawyer  for  resisting  him  in  getting  his  own 
property — out  of  his  own  funds.  My  learned  friend  says 
that  Philip  Garret,  in  taking  Morgan  Hinchman  in,  and 
then  confining  him,  had  no  art  or  part  in  the  concern. 
May  it  please  your  honor,  when  does  a  defendant  partici- 
pate— I  may  as  well  dispose  of  that  now.  Men  may  con- 
spire together;  and  if  a  man  come  in  at  the  eleventh 
hour,  he  is  answerable  for  all  done  before.  (Judge. — Sup- 
pose he  is  not  in  the  conspiracy,  but  does  some  collateral 


HINCHMAN   CASE.  293 

act — not  of  a  nature  to  prove  part  of  it — he  is  not  answer- 
able at  all.)  I  know  your  honor  likes  fairness  and  open- 
ness, and  I  am  not  going  to  strain  any  point.  It  comes  to 
this ;  if  he  was  not  one  of  them  he  is  not  answerable. 
But  your  honor  will  see  that  if  two  men,  or  twenty  men, 
in  different  parts  of  this  wide-spread  city  are  all  doing 
similar  acts  at  the  same  time,  against  the  same  individual, 
who  lives  in  the  centre ;  when  the  law  comes  to  try  them, 
their  simultaneous  acts  prove  their  guilt :  because  the 
law  cannot  understand  how  twenty  men,  twenty  miles 
asunder,  could  act  exactly  alike,  with  reference  to  the 
same  person,  unless  by  concert.  Your  honor  will  per- 
ceive, that  I  have  said  when  a  man  comes  in  at  the  elev- 
enth hour  he  is  a  conspirator;  but  if  a  man  come  in  at 
the  first  hour,  and  with  others  concoct  and  concert  a  plan 
of  injury;  and  then  he  is  not  seen  till  after  its  comple- 
tion, he  is  answerable  for  all  that  takes  place.  It  is  the 
same  heart,  the  same  motive ;  and  whether  he  raises  his 
hands  to  carry  out  the  motive  or  design,  is  of  no  consid- 
eration or  regard.  So  of  a  man  who  lives  in  California ; 
he  may  be,  though  out  of  the  jurisdiction  of  this  court,  a 
conspirator  with  a  man  here.  Men  in  different  countries 
may  be  conspirators.  It  does  not  matter  where  they  re- 
side— when  they  come  in — what  portion  of  the  wrong 
has  been  done  by  them — they  are  answerable  from  the 
beginning  to  the  end.  Those  who  come  in  last,  adopt  the 
acts  from  the  beginning;  and  constructively  conform  to 
the  motives  of  others,  and  are  answerable,  i^ay,  more 
than  that,  sir,  I  take  leave  to  say,  that  if  a  dozen  men 
assemble  around  three  armed  men  ;  and  these  armed  men 
present  their  weapons  to  the  breast  of  an  intended  vic- 
tim ;  and  the  other  twelve  do  nothing — say  nothing — 
and  harm  nobody ;  they  may  wash  their  hands  as  they 
please,  the  law  makes  them  guilty :  for  their  physical 
force  operates  to  destroy  or  defeat  the  intention  of  self- 
defence,  that  may,  of  right,  exist  in  the  other  party.  It 
is  not  necessary  the  men  should  act.  If  you  had  thought 


294  FORENSIC    SPEECHES   OF   DAVID    PAUL    BROWN. 

of  defending  yourself  against  one  man,  what  hope  have 
}~ou  against  such  a  number?  Though  they  do  no  act, 
they  promote  the  aggression.  They  were  bound  to  pre- 
vent it,  and  he  who  does  not  is  answerable. 

These  men  have  trampled  upon  the  bill  of  rights,  and 
violated  constitutional  protection ;  they  are  all  implicated ; 
whether  all  were  present  and  all  united  in  the  immediate 
design,  as  is  undoubtedly  the  case,  it  matters  not.  It  is  in 
vain  they  refer  to  the  wife  and  mother ;  it  is  in  vain  they 
attempt  to  screen  themselves  behind  a  petticoat  (for  that 
is  part  of  their  valor,  and  it  is  admirable  to  be  sure) ;  it  is 
in  vain  they  assert  their  ignorance  of  the  law.  No  man 
is  permitted  to  be  ignorant  of  the  law,  and  of  the  rights 
of  individuals.  With  three  counsel  in  Doylestown,  and 
one  in  Philadelphia — four  lawyers — and  still  be  ignorant, 
almost  passes  belief.  These  men  seize  me  ;  take  me  to  the 
asylum  ;  keep  me  there  for  six  months  ;  allow  my  child  to 
die ;  sell  my  property,  and  then  say  "  we  were  ignorant  /" 
Who  is  to  pay  for  your  ignorance  ?  You  must  pay  for  it 
yourselves.  There  are  no  excuses,  except  the  proof  of 
their  insanity,  or  that  of  the  plaintiff.  I  could  prove  them 
insane  more  clearly  than  they  prove  Morgan  Hinchman 
to  be  so  ;  sending  Mr.  White — a  respectable  man  ;  impos- 
ing on  him,  and  making  him  the  wretched  pander  of  a 
lie,  to  deceive  a  man,  who  they  say  was  insane,  by  mak- 
ing an  appointment  with  him  to  buy  his  property.  Are 
these  the  characteristics  of  just  men  ?  It  appears  to  me, 
that  it  is  an  extravagant  notion,  to  say  the  least  of  it. 
Although  ignorance  is  poetically  said  to  be  "  bliss  ;"  it  will 
be  found  in  point  of  law,  to  be  a  troublesome  companion. 
It  is  certain  that  so  far  from  justification,  it  is  in  many 
instances,  a  gross  aggravation  of  the  offence.  Now,  sir,  I 
say,  for  the  purpose  of  meeting  the  gentlemen ;  if  Mor- 
gan Hinchman  were  in  a  deluded  or  doubtful  state,  they 
had  no  right  to  arrest  him  in  this  manner — away  from  his 
friends,  away  from  his  home,  in  another  county  than  that 
of  his  residence,  without  any  legal  authority,  and  without 


HINCHMAN   CASE.  295 

actual  necessity — which  is  the  only  substitute  for  au- 
thority. The  law  utterly  abhors  a  proceeding  like  this. 
If  he  were  a  criminal,  they  would  not  dare  to  arrest  him 
in  this  way ;  and  to  say  that  they  heard  slanders  about 
him;  and  to  bring  such  a  man  as  Matlack — a  living 
anachronism — who  cannot  correctly  remember  anything 
within  five  years,  and  who  forgets  vthe  time  of  his  own 
marriage — for  the  purpose  of  swelling  the  slanders.  He 
finds  Mr.  Hinchman  always  sane  when  he  wants  him  to 
lend  him  $1,250 ;  but  not  sane  when  he  requires  him  to 
pay  it  back  again. 

I  don't  wish  to  travel  out  of  this  case  for  the  purpose 
of  dragging  in  these  matters  ;  there  is,  heaven  knows, 
enough  to  do,  in  what  belongs  to  the  case.  I  say,  if  he 
were  a  criminal,  they  would  not  have  dared  to  arrest  him 
in  this  way ;  making  themselves  magistrates,  witnesses, 
bailiffs,  judges,  executioners — everything.  Let  me  'test 
it.  This  will  be  a  fair  test  to  you  :  suppose  when  they 
came  to  arrest  Morgan  Hinchman — even  with  Mr.  George 
M.Elkinton,  the  Napoleon  of  this  train-band  !  who  speaks 
"  true  cannon  powder,"  when  he  says — "  There  is  no  use 
of  talking  any  longer,  if  thee  is  not  going,  we  will 
force  thee," — suppose,  notwithstanding  this  leader  of  the 
Spartan  band — so  "  bloody,  bold,  and  resolute," — Morgan 
Hinchman  had  said,  "  G-entlemen,  I  don't  understand 
this ;  I  shall  not  go ;"  and  he  had  felled  each  one  of  the 
six,  successively  to  the  earth,  and  they  had  prosecuted 
him ;  what  would  be  the  result  ?  His  honor  would  tell 
you  that  after  he  had  knocked  them  down,  he  ought  to 
have  kicked  them  out.  It  may  have  been  sport  to  them, 
but  to  the  plaintiff  it  was  death.  Suppose  you  should  be 
awakened  from  your  slumbers  as  by  a  thunder-clap  from 
a  cloudless  sky,  and  find  yourself  surrounded  by  your 
hunters,  and  told  that  you  are  sick — you  think  you  are 
well,  and  say,  "  I  am  not  sick,  and  I  am  the  best  judge 
of  the  matter."  "  Well,  but  we  shall  give  thee  repose," 
and  yet  you  were  interrupted  every  hour  of  the  night. 


296  FORENSIC   SPEECHES   OP    DAVID    PAUL    BROWN. 

"  Well,  but  I  don't  want  to  go — I  have  business  to  attend 
to."  And  I'll  show  you  at  a  proper  time,  how  beauti- 
fully the  business  of  Morgan  Hinchraan  was  arranged. 

Can  any  one  contend,  that  you  may  be  violently  seized, 
and  remorselessly  and  legally  borne  away,  to  the  melan- 
choly cells  of  a  common  mad-house  ? — It  is  madness  to 
assert  it. 

I  say,  gentlemen  of  the  jury — and  we  move  step  by 
step,  desiring  at  the  same  time  some  little  impress  may  be 
made  in  the  progress  of  the  journey, — suppose  they  had 
gone  there  armed  with  the  law — with  a  warrant,  accom- 
panied by  a  police  officer,  acting  under  a  regular  deputa- 
tion ;  and  then  had  arrested  him — he  would  not  have  dared 
to  lay  his  finger  on  them.  That  goes  to  strengthen  the 
opinion  previously  suggested,  that  the  law  protects  those 
acting  in  the  name  of  the  law  ;  and  punishes  those  who 
attempt  resistance  to  its  authority.  It  is  true  that  indi- 
vidual oppression  is  rarely  so  abhorrent,  rarely  so  odious, 
as  when  it  stalks  forth  decorated  in  the  sacred  habili- 
ments of  the  law.  But  still  there  is  one  condition  of 
things  more  odious  than  that — where  it  is  perpetrated 
without  the  sanction  of  the  law — where  it  not  only  does 
injury  to  the  individual,  but  exhibits  and  furnishes  an  ex- 
ample to  the  community,  which  teaches  them  to  imitate 
the  outrage,  instead  of  adopting  virtue  and  the  law  as 
their  standard.  It  is,  therefore,  important — (I  can't  refer 
to  it  too  often,  for  I  consider  it  a  vital  matter) — that  you 
should  distinguish,  between  what  men  do  of  themselves, 
against  the  general  principles  of  civil  society  ;  and  what 
they  do  under  the  law  with  the  law's  authority,  and  with 
the  law's  shield.  I  cannot  exhibit  it  more  strongly,  than 
by  showing,  that  in  one  case  he  would  be  justified  in 
kicking  them  down  stairs;  and  in  the  other  case,  they 
would  be  justified  in  taking  him,  whether  he  was  right  or 
wrong,  in  obedience  to  their  official  mandate.  They  may 
kill  him  if  he  resist.  But  if  they  had  killed  this  man,  he 
resisting,  there  is  but  one  result — it  would  have  been 


HINCHMAN   CASE.  297 

murder — "  murder  most  foul  as  in  the  best  it  is,  but  this 
most  foul,  base  and  unnatural."  Your  honor  says  truly, 
it  would  have  been  murder,  simply  because  it  was  not 
under  authority  ;  and  he  was  authorized  to  resist,  if  they 
were  not  authorized  to  punish.  If  he  had  died  in  resist- 
ing these  unauthorized  attacks,  they  would  have  been 
malefactors,  and  must  swing  for  it.  I  don't  know  that  I 
shall  have  occasion  to  return  to  this,  but  I  wish  it  to  be 
impressed  upon  your  minds,  in  order  that  you  may  know, 
when  you  hear  the  law  spoken  of,  that  it  is  your  protec- 
tion, only  while  acting  in  obedience  to  it.  The  shield  is 
turned  into  a  sword,  when  you  become  violators  of  public 
peace,  order,  and  law.  I  say  then,  summing  this  up :  it  is 
plain,  if  this  doctrine  be  sound,  that  the  proceeding  was 
wrong  from  the  beginning,  being  founded  in  wrong  ;  and 
I  say  further  that  no  subsequent  proceeding,  could  make 
it  right.  This  is  another  point  that  runs  counter  to  our 
friend's  position.  You  cannot  impart  life  to  a  dead  body. 
There  is  no  Promethean  spark  that  can  revivify  that 
frame,  in  which  life  is  once  extinct.  An  act  that  is  void 
(not  merely  voidable), — an  act  that  is  void  as  this  was — 
an  act  that  is  worse  than  void — that  is  criminal,  as  this 
was — can  never  be  restored  to  pristine  health  and  purity. 
But  if  it  could — and  here  is  another  point — I  further  say, 
that  every  subsequent  step  was  as  illegal  as  the  first.  If 
the  wholesome  ear  cannot  impart  life  to  a  blasted  brother : 
certainly  the  corrupt  ear  cannot  restore  health.  The  peti- 
tion was  all  wrong — the  commission  was  all  wrong — the 
inquest  was  all  wrong.  The  mode  of  summoning  the 
jury,  I  will  show  you  at  a  future  time,  was  wrong — I  use 
no  harsher  term.  All  contributing  to  show  how  strong, 
operative,  and  diffusive  were  the  principles  of  this  con- 
spiracy. The  want  of  a  seal  was  defective — the  affidavit 
was  defective ;  and  the  continued  confinement  in  the 
asylum  was  a  superadded  outrage. 

Why,  if  we  had  even  admitted  that  be  was  insane — did 
your  honor  not    observe  a  peculiarity  here :   Dr.  Evans 


298  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

says,  the  plaint.ff  was  convalescent  early  in  February — 
that  was  before  some  of  the  letters  were  written.  Then 
why  did  they  keep  him  there  till  the  7th  of  July  ?  Now, 
that  is  the  doctor's  evidence.  What  is  the  object  of  it  ? 
There  is  no  other  mode  of  accounting  for  the  sanity  of 
the  letters,  than  by  his  being  convalescent  in  February? 
Why  is  he  kept  live  months  afterwards  ?  Do  you.  mark 
that — I  only  ask  the  question  now — I  will  answer  it 
by  and  by. 

The  learned  judge,  to  whom  I  bow  with  deference,  has 
said :  "  that  as  the  inquisition  has  been  set  aside,  it  is  as 
though  it  had  never  be^n."  It  will  be  a  dark  day  when 
the  opposite  doctrine  shall  be  tolerated — when  original 
wrong  may,  under  the  wing  of  the  law,  be  purged  into 
pristine  health  and  soundness.  Once  wrong,  it  is  always 
wrong.  Its  foundation  is  too  weak,  to  sustain  any  de- 
fence, however  light  and  serial,  that  is  built  upon  it.  It 
has  been  quashed  and  set  aside  for  original  defects.  It  is 
as  though  it  had  never  been,  so  far  as  regards  the  defence. 
They  can  have  no  protection  from  it.  But  it  is  not  as 
though  it  had  never  been,  so  far  as  regards  the  plaintiff's 
case.  The  very  machinery  that  they  have  resorted  to,  for 
the  purpose  of  imparting  vigor  to  their  puny  bantling,  is 
evidence  of  their  malice — of  their  connection  with  the 
transaction;  and  their  connection  with  subsequent  mat- 
ters is  a  proof  of  original  combination.  Still  they  recur, 
(whenever  they  are  hemmed  in  by  difficulties  of  this  char- 
acter) to  the  old  suggestion,  so  well  argued  by  my  friend 
Mr.  Williams — "  that  they  performed  different  parts,  and 
came  in  at  .different  times."  I  answer,  they  came  in  :  it 
does  not  matter  when  they  came  in,  or  what  part  they 
acted.  It  does  not  matter  whether  in  this  drama  they 
were  stars  or  supernumeraries — kings  or  servants — they 
all  contribute  to  swell  the  dramatic  personce — they  all  per- 
form their  respective  parts — all  contribute  to  disturb 
domestic  sanctity,  and  must  all  bear  the  penalty.  Now, 
gentlemen  of  the  jury,  after  discussing  almost  every  priu- 


HINCHMAN   CASE.  299 

ciple  that  is  embraced,  or  can  be  embraced  in  this  case — 
though  not  applying  it,  because  that  must  be  reserved  for 
the  minute  consideration  of  facts — after  all  this,  we  come 
to  what  is  considered  the  essence  of  the  cause.  My  learned 
friend  and  professional  antagonist,  Mr.  Gibbons — invert- 
ing the  natural  order  of  things — has  commenced  with  his 
conclusion  ;  and  has  concluded  wher^e,  I  think,  he  would 
have  more  properly  commenced. — That  however  is  a  mat- 
ter of  choice — a  matter  of  judgment.  He  may  be  right.  I 
shall  take  another  course,  and  shall  ask  you  to  ratify  it,  and 
unite  with  me  in  its  pursuit,  beginning  with  the  unlawful 
arrest,  the  character  of  which  I  have  shown,  and  tracing 
the  plaintiff'  by  the  current  of  time  down  to  the  period 
when  the  proceedings  against  him,  under  the  commission 
of  lunacy,  were  quashed.  Having  gone  over  this  part,  I 
shall  next  examine  the  alleged  ground  upon  which  the 
arrest  was  made,  and  on  which  the  confinement  was  con- 
tinued down  to  the  7th  of  July,  1847.  You  will  bear  in 
mind  that  the  confinement  would  have  continued  until 
this  day — heaven  knows  how  much  longer — if  it  had  not 
been  for  the  interposition  of  Benjamin  Hinchman,  and 
the  subsequent  escape  of  Morgan  Hinchman — he  having 
withdrawn  his  parole.  They  tell  you  they  never  allowed 
patients  to  go,  until  the  parties  that  placed  them  there, 
came  for  them.  You  know  that  the  mother,  herself, 
differed  from  Dr.  Evans  ;  and  entered  into  an  argument 
to  show  that  her  son  should  not  be  set  free — the  first  in- 
stance on  record,  established  against  this  most  estimable 
lady :  equal  to  the  Countess  ot  Macclesfield  herself,  who 
pursued  her  own  child  to  death,  dooming  him  to  famine, 
while  she  was  rolling  in  the  luxury  and  opulence  of 
Eastern  magnificence.  This  lady,  whose  heart  should 
have  overflowed  with  joy,  and  who  should  have  been  the 
first  to  suggest  that  it  was  probable  her  son  was  recovered — 
when  Dr.  Evans  said  he  was  about  to  be  discharged — ex- 
presses doubts  whether  it  was  proper.  Now  while  the  tears 
of  a  paternal  relative  flow  down  manly  cheeks — and  while 


300  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

no  man  that  listens  can  fail  to  feel, — where  was  the  glist- 
ening moisture  of  the  eye  exhibited  -by  a  mother,  in  the 
attempt  to  demolish  the  character  of  her  own  child.  I 
suppose  "  Grief  drank  the  offering  ere  it  reached  the  eye." 
There  is  no  other  mode  of  accounting  for  it.  Ao;aiu,  the 

O  O  ' 

fair  sister  smiles — looks  on  and  smiles — and  enjoys  this 
proceeding,  under  the  protection  of  the  adversaries  of  her 
brother  ;  and  never  sheds  a  drop  of  sympathetic  dew  from 
her  bright  eyes,  to  improve  the  roses  on  her  cheek.  Look 
at  these  things.  And  then  another  sister,  condoling  with 
him :  Heaven  spare  me  and  mine,  from  such  condolence, 
should  condolence  be  required.  "There  is  a  cant  condo- 
lence that  gives  more  pain  to  the  afflicted  mind  than  open 
scorn !"  Such  was  the  character  of  her  letter.  I  think 
I  never  knew  more  obduracy,  in  a  matter  calculated  to 
enliven  and  invigorate  all  the  springs  of  the  human  heart — 
than  was  exhibited  there.  My  learned  friend,  Mr.  Gib- 
bons, complains  of  an  honorable,  high-minded  man,  who 
has  dune  nothing  but  venture  to  stem  the  torrent  of  per- 
secution in  behalf  of  a  brother's  son  ;  and  turning  upon 
him,  stigmatizes  him  as  a  "paternal  relative,  who  shed  his 
dramatic  tears."  It  comes  well  from  that  quarter.  There 
was  not  a  man  in  this  assembly  that  was  not  more  moved 
by  the  plaintiff's  injuries,  than  the  mother  that  bore  him — 
K"ot  one.  I  am  perfectly  willing  to  pay  all  homage  to  the 
feelings  of  a  woman's  breast  that  it  is  entitled  to ;  and 
remember  I  say  nothing  against  her — it  is  not  my  busi- 
ness. I  know  nothing  of  her  character.  A  woman  may 
have  a  marble  heart ;  and  yet  may  be  an  honest,  prudent, 
careful  woman,  in  good  standing.  I  should  be  mad,  and 
put  in  a  mad-house,  if  I  were  to  create  an  issue  of  that 
kind.  But  I  will  venture  to  say,  that  the  course  pursued 
by  these  persons — whether  stimulated  by  affection  or  fear 
or  hatred,  I  don't  care  which — operated,  like  thrusting  an 
ice-bolt  through  your  hearts.  Theory  is  one  thing ;  wo- 
mau's  love  is  a  delightful  theory ;  but  inverted  love — love 
sprung  from  hate  that  is  engendered  by  the  dislike  of 


HINCHMAN   CASE.  301 

relatives  for  nearly  eighteen  years;  these  things  corrupt 
the  genial  current  of  a  woman's  affections.  When  she — 
owing  a  divided  duty — comes  to  be  supported  by  her 
daughters,  in  opposition  to  her  son  ;  it  is  only  a  compari- 
son of  relative  affections.  In  addition,  she  was  endorsed 
by  the  whole  confederacy.  To  manifest  some  regard  for 
their  authority,  she  burns  his  letters. .  Is  this  fair?  Burn- 
ing them  within  one  week, — since  the  cause  came  on  !  I 
am  not  going  to  say  that  she  is  guilty  of  treason  ;  but  I 
do  say,  when  you  put  all  these  things  together,  you  must 
perceive  that  there  is  a  most  unkind,  not  to  say  cruel, 
disposition  towards  Morgan  Hinchman;  occasioned  either 
by  alienated  affection  ;  by  his  having  lived  apart  from  her 
after  the  miserable  affair  of  the  apple  tree ;  or  by  a  pre- 
ference for  her  other  children,  or  a  stronger  adherence  to 
the  monthly  meeting  and  board  of  managers  of  the  asy- 
lum. It  is  plain — for  no  man  denies  it — no  cloak  can 
cover  it,  the  evidence  proclaims  it — that  she  acts  in  con- 
cert with  the  avowed  adversaries  of  her  son. 

I  wish,  as  I  have  said,  to  pursue  the  chronological  order 
of  events,  in  the  discussion  of  facts.  Time  is  said  to  be 
the  discoverer  of  all  things:  and  the  most  judicious  mode 
that  can  be  adopted,  where  you  have  a  case  of  any  en- 
tanglement, is  to  take  it  up  in  the  order  of  time,  and  each 
successive  step  will  be  explained  by  that  which  precedes ; 
and  thus  you  will  have  a  regular  course  of  deduction. 
Your  honor  knows,  we  all  know,  let  a  man  be  embar- 
rassed in  investigation,  if  he  has  the  dates,  and  order  of 
the  events,  it  is  a  perfect  Ariadne's  clue,  that  enables 
him  to  escape  without  difficulty.  That's  my  practice — it 
answers  me — and  I  presume  it  answers  others. 

In  the  result  of  the  course  which  is  thus  proposed,  I 
shall  show  you,  that  this  is  a  most  wanton  and  high- 
handed attack  upon  the  plaintiff's  rights  ;  further  aggra- 
vated by  the  obdurate  character  and  course  of  the  defence, 
and  those  engaged  in  it — further  aggravated  by  mental 
reservations  at  which  you  were  astonished! — further 


302  FORENSIC   SPEECHES   OF   DAVID    PAUL   BROWN. 

aggravated  by  the  concealment  of  papers,  and  the  denial 
of  well-known  and  important  facts,  by  these  reputable 
men  ! — honorable  men  ! 

No  man  that  has  any  pretensions  to  respectability,  de- 
nies his  own  hand.  Any  one  that  wears  a  clean  shirt, 
would  scorn  such  quibbling  and  evasion,  as  have  been 
exhibited  here  by  witnesses  on  the  part  of  this  defence ! 
"Why,  I  assure  you,  there  never  was  such  an  opportunity 
for  a  cross-examination;  your  honor  has  perceived  it,  but 
not  wishing  to  weary  you,  I  have  sometimes  passed  it  by. 
The  evasive  character  of  the  whole  defence — signatures 
denied^-orders  denied — minutes  kept  back — records  viti- 
ated and  altered — burning  letters — aye,  our  letters  which 
would  have  proved  our  sanity — burnt  during  the  progress 
of  this  very  case  !  And  such  testimony !  On  the  surface 
it  is  smiling  and  beautiful,  but,  when  you  dive  below — I 
•won't  say  it  is  "  filled  with  dead  men's  bones,"  but  it  still 
resembles  very  much  "  a  whited  sepulchre." 

Let  me  give  an  instance.  There  was  a  reputable  gen- 
tleman as  high  as  the  highest,  Mr.  Scattergood — one  of  the 
managers  of  this  asylum — and  as  respectable  as  any  man 
among  them.  Your  hon  >r  will  remember  that  Mr. 
Warder  had  put  himself  upon  the  court  for  a  discharge, 
upon  the  inability  on  our  part  to  prove,  that  he  signed 
the  order — by  virtue  of  which  the  plaintiff  was  confined; 
and  the  ground  of  his  application  was  that  he  never  signed 
the  order!  That  I  say  nothing  about.  But  gentlemen 
of  the  jury,  when  Mr.  Scattergood  was  called  on  the 
other  side ;  and,  by  a  mere  random  shot — for  I  assure  you, 
I  had  no  idea  what  would  be  the  answer — I  happened  to 
ask,  "Sir,  do  you  know  who  signed  the  order  of  admis- 
sion ? "  He  said,  "  No,  I  do  not."  I  then  proceeded, 
"Did  you  ever  speak  to  Benjamin  H.  Warder  on  that 
subject  ?"  Says  he  to  the  judge,  "  Am  I  bound  to  answer 
that  question  ? "  "  To  be  sure  you  are."  "  Well,  yes — I 
did."  My  next  question  was,  "  Did  he  not  admit  to  you 
that  he  signed  the  order?"  "Am  I  bound  to  answer 


HINCHMAN   CASE.  303 

that  question?"  "To  be  sure  you  are,"  replies  the  court. 
"  Well — he  did."  Now  you  can  see  the  difficulties  we 
have  to  wade  through  in  regard  to  the  snow-bank,  &c. 
(Though  that  melted  some  half  dozen  years  ago,  it  is 
treasured  up  to  swell  the  catalogue  of  this  man's  eccentri- 
cities.) And  here,  I  may  as  well  remark,  in  all  my  expe- 
rience I  never  knew  equal  mental  reservation.  Here  is 
an  honorable,  high-minded  man,  who  tells  me  he  does  not 
know,  when  he  does  know !  That  would  be  nothing  ;  but 
by  refusing  or  declining  the  questions  that  followed,  it  is 
evident  he  knew  what  was  required  from  him ;  and  when 
driven  to  the  wall,  he  confesses  that  Benjamin  Warder 
himself,  told  him  that  he  had  signed  that  very  order. 
"Well,  now,  what  do  you  say.  A  man  affirmed  to  tell  the 
whole  truth! — a  strict  professor!  So  with  Dinah  Taylor — 
I  wish  you  would  call  her  Diana — a  beautiful  name,  and 
a  beautiful  woman,  and  all  the  most  beautiful  things 
should  be  put  together.  "Well,  what  does  Diana  do? 
"Why  she  gives  you  a  terrible  account ;  making  this  man 
out  to  be  mad,  because  he  drove  h6r  through  a  snow- 
bank. "When  she  was  examined  here,  as  to  where  the 
snow-bank  was ;  it  was  in  the  middle  of  the  street, 
or  on  the  side  of  the  street.  What  did  he  drive  you 
through  for  ?  Why  to  bring  me  to  the  curbstone.  Fire 
and  fury  ! — is  this  the  manner  in  which  we  are  to  be  baf- 
fled ?  This  is  all  true,  no  doubt.  I  do  not  impute  any 
direct  falsity  to  it — Heaven  forbid!  but  it  is  given  in  such 
a  sly  manner — which,  I  know,  his  honor  abhors.  There 
is  no  moral  difference  between  purposely  evading  a  ques- 
tion, and  a  positive  untruth.  So  again,  I  could  go 
through  a  dozen  occurrences  of'  a  similar  nature.  This 
shows  why  letters  were  burnt ;  it  shows  why  certain  por- 
tions of  the  correspondence  can  be  got,  and  others  not. 
It  is  a  very  extraordinary  case,  let  men  speak  of  it  as  they 
will.  I  don't  think  this  system  of  strategy  belongs  to  the 
original  school  of  Friends ;  or  else  I  do  not  understand  its 
character. 


304  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

Having  exhibited  a  brief  summary  of  the  grievances 
and  wrongs  of  the  plaintiff;  I  shall  leave  it  to  you, 
through  the  medium  of  your  verdict,  to  indemnify  the 
plaintiff — to  teach  the  defendants  a  lesson  of  obedience 
to  the  law,  and  exhibit  an  example  to  benefit  others. 

Now,  sir,  I  go  to  the  evening  of  the  5th  of  January, 
1847.  On  that  evening,  neither  dreading  nor  thinking 
harm,  in  pursuance  of  his  ordinary  business,  the  plaintiff 
leaves  his  farm  in  Plumstead,  in  a  neighboring  county, 
to  attend  the  market  in  this  city.  Before  his  departure 
— and  all  this  must  be  noted — having  recently  employed 
some  new  hands,  he  gave  directions  to  his  agent  or  super- 
intendent to  keep  them  closely  to  work  ;  to  give  proper 
attention  to  the  cattle — for  the  righteous  man  is  merciful 
to  his  beast, — and  with  his  ordinary  kindness,  and  with 
the  expectation  of  returning  in  forty-eight  little  hours,  he 
bade  a  tender  farewell  to  his  innocent  children — one  of 
whom,  he  was  destined  never  again  to  see.  Look  at  that 
first  stage  in  our  progress.  I  will  not  embarrass  or  per- 
plex you,  by  introducing  anything  that  does  not  relate  to 
the  subject.  He  left  upon  the  farm,  an  affectionate  wife 
and  three  prattling  infants — those  for  whose  comfort  and 
prosperity,  in  his  own  language — in  the  language  of  his 
letter,  which  speaks  with  the  most  miraculous  organ  of 
his  sanity — those  for  whom  he  had  endured  privations, 
those  for  whom  he  "would  freely  have  borne  all  his  toils." 
That  is  the  language  of  his  letters.  Could  he  at  that 
moment, — carry  your  mind  back  to  that  point  of  time — 
could  he  at  that  moment,  have  entertained  any  presenti- 
ment of  what  was  about  to  befall  him,  within  forty-eight 
little  hours,  the  echo  of  that  simple  word  FAREWELL, 
wou!d  have  sounded  like  the  knell  of  departed  joys — de- 
parted, never,  never  to  return.  Farewell,  he  might  have 
added,  for  six  long,  lingering  months,  to  be  spent  in  the 
gloomy  recess  of  a  mad-house,  where  he  could  never  get  a 
glimpse  of  liberty.  As  to  his  family,  that  is  too  tender  a 
subject  to  speak  of  now.  It  is  the  last  touch  of  this  pic- 


HINCHMAN   CASE.  305 

ture,  of  almost  unparalleled  woe.  Bring  it  to  yourselves ! 
— that  is  the  test  ?  Place  yourselves  in  his  position,  if 
imagination  can  reach  as  far;  or  does  it  distance  the  con- 
ception of  your  minds  ? 

He  arrives  at  Philadelphia  ;  attends  to  his  duties  faith- 
fully ;  disposes  of  his  produce  ;  regularly  collects  his  rents  ; 
prepares  to  see  his  agent,  Mr.  Saurman ;  and  renews  a  ne- 
gotiation with  Ezra  Smith  with  regard  to  a  loan  of  $3,000, 
which  was  to  be  procured  for  him  at  an  interest  of  5  per 
cent.,  for  the  purpose  of  relieving  his  farm.  There  is  no 
act  without  its  reason — and  a  consistent,  proper  and  judi- 
cious one.  Do  not  all  these  facts,  corresponding  and  con- 
curring, make  out  the  perfect  sanity  of  the  plaintiff? 
Does  he  borrow  money  at  an  excessive  interest  ?  No — he 
borrows  like  a  prudent  man,  like  an  honest  man,  to  meet 
an  approaching  debt  due  in  April ;  with  an  eye  to  thrift 
he  borrows  it,  at  one  per  cent,  less  than  his  former  con- 
tract. Pie  makes  his  arrangements  in  a  formal,  profit- 
able, orderly,  and  discreet  way.  Where  is  the  man  here, 
who  could  have  done  it  better  ?  If  a  man  act  appropri- 
ately in  the  business  in  which  he  is  concerned — in  all  its 
branches,  and  never  fails  to  indicate  a  just  comprehension 
of  his  position  :  what  other  evidence  can  you  have  of  his 
sanity  than  that  ?  I  don't  mean  a  single  instance,  in  all 
its  instances — in  all  method — in  all  his  relations.  If  any 
man — if  Morgan  Hinchman — is  to  be  declared  a  lunatic 
on  such  evidence ;  there  is  not  a  man  in  Bucks  county, 
says  one  of  the  witnesses  (John  Rich),  that  cannot  be  de- 
clared insane.  There  was  nothing  insane  in  this  step  : 
there  was  no  '*  wasting  "  of  his  estate,  as  they  have  sworn. 
If  there  were  any  fault  in  him  at  all,  it  was  rather  too 
much  nicety,  too  much  calculation,  but  no  "  wasting  ;"  on 
the  contrary,  as  I  have  said,  his  course  was  characterized 
by  ordinary  intelligence,  thrift,  prudence,  and  precaution. 
Whatever  little  anxiety  he  exhibited,  may  it  please  your 
honor,  about  this  time,  was  perfectly  natural.  These  things 
explain  each  other.  All  of  these  matters,  which  have 

20 

I 


306  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

been  conjured  up  for  the  purpose  of  indicating  insanity, 
are  perfectly  natural  and  rational.  There  was  a  judgment 
of  $1,000,  in  favor  of  Heston  falling  due  the  1st  of  April, 
1847 ;  and  the  mortgage  to  Brown,  which  he  desired  to 
pay  at  that  time.  Is  it  unnatural  that  he  should  show 
some  little  ordinary  anxiety  ?  Is  that  evidence  against 
his  reason  ;  or  is  it  not  evidence  in  support  of  it?  They 
will  give  you  these  detached  matters  without  any  circum- 
stances of  explanation.  Most  men  can  be  proved  mad 
by  such  means.  I  say,  he  must  be  a  madman,  or  worse, 
who  will  endeavor,  on  such  a  basis,  to  build  up  the  sus- 
picion of  insanity. 

The  conversation  Tield  with  Michener  (I  don't  speak  of 
recantation  Michener — I  speak  of  lawyer  Michener),  a 
short  time  before  the  plaintiff  left  his  quiet  home,  showed 
clearly  what  were  his  means  of  payment ;  and  whatever 
fears  were,  entertained,  as  to  the  payment  by  Hinchman, 
were  dispelled.  He  explained  satisfactorily  the  sources 
of  his  getting  money  ;  and  satisfied  the  claimant  by  an  ex- 
hibition that  has  never  been  denied — corresponding  with 
the  statement,  since  verified — that  he  was  perfectly  com- 
petent to  pay  the  original  sum  owed  by  him  ;  and  Mr. 
Michener  being  satisfied,  would  never  have  pressed  it,  but 
for  this  calamity,  which  brought  ruin  upon  his  house. 
But  they  say,  what  did  we  get  of  his  property — did  we 
not  give  it  back  to  him?  Aye  !  you  fought  to  the  last — 
you  fought  and  paid  lawyers  oat  of  his  estate — to  keep 
him  out  of  his  estate.  Is  that  giving  back  his  property — is 
that  a  matter  of  mere  dollars  and  cents.  You  have  sold 
his  entire  property  and  stock  ;  as  well  as  broken  him  up 
root  and  branch  :  and  do  you  talk  about  giving  him  back 
his  property  ;  you  might  as  well  give  him  back  the  body 
of  his  child,  robbed  of  life,  and  ask  him  to  console  him- 
self in  the  contemplation  of  his  own  irremediable  loss. 
This  is  an  abuse,  an  aggravation  of  the  offence. 

Then  the  ridiculous  matter,  that  is  brought  into  the 
case! — selling  two  pounds  of  butter,  because  he  wished  to 


HINCHMAN  CASE.  307 

collect  money  to  pay  a  bond  (every  little  helps) ;  and  taking 
the  clover  seed  to  Dr.  Noble — which  Mrs.  Noble  did  not 
understand !  These  are  wonderful  indications  of  the  want 
of  sanity :  clover  being  scarce  with  the  doctor,  who  was 
on  a  farm,  and  money  being  scarce  with  Morgan,  it  was 
natural  for  one  to  wish  to  sell  it,  and  I  don't  know 
whether  it  did  not  turn  out  that  the  other  bought  it. 
This  is  a  very  dangerous  scheme — to  cast  your  drag-nets 
over  eight  years  of  any  man's  life. 

Then,  again,  his  desire  to  make  sale  of  his  Marshall 
street  property,  to  pay  off  his  mortgage!  His  great  pas- 
sion was  his  farm.  Collecting  every  jeent  that  was  due, 
is  reconcilable  with  a  correct  and  sound  view  of  his  pecu- 
niary condition  at  that  time.  Well,  then  again,  please 
to  call  to  mind  Mrs.  Wright's  testimony — a  harmless, 
unoffending,  estimable  woman,  I  have  no  doubt ;  I  have 
not  a  word  to  say  in  regard  to  that.  She  says  he  came 
hastily  into  her  house.  To  be  sure  he  did ;  he  was  in  a 
hurry  to  leave  town  ;  he  had  business  to  do ;  he  had  seen 
Mr.  Bispham ;  he  was  going  to  Mr.  Pepper's,  still  bent  on 
that  one  absorbing  object.  Mr.  Pepper  is  not  in  ;  and  he 
returns  and  takes  his  dinner  at  Mrs.  Wright's,  and  there 
ventures  to  count  his  money — there  is  certainly  no  harm 
in  that.  He  was  a  young  man ;  he  was  just  about  de- 
parting to  the  farm,  and  there  were  a  thousand  matters 
to  induce  him  to  count  his  money — at  all  events,  it  was 
entirely  consistent  with  sanity.  All  these  matters  belong 
to  the  same  category,  and  receive  the  same  explanation. 
He  expects,  as  you  remember,  to  overtake  Mr.  Smith  at 
Jenkintown ;  and,  with  a  prudence  that  is  remarkable,  so 
arranges  it,  that,  if  he  does  not  happen  to  overtake  him 
at  Jenkintown,  Mr.  Smith  and  the  lender  of  the  money, 
are  to  meet  him  at  his  place  in  a  few  days ;  when  the 
money  is  to  be  loaned,  the  circumstances  are  to  be  ex- 
plained, and  the  security  is  to  be  given.  Can  there  be 
anything  more  regular  or  right  ?  This  is  on  the  6th,  the 


308  FORENSIC    SPEECHES   OP   DAVID   PAUL    BROWN. 

day  before  the  eventful  morning  when  he  was  robbed  of 
every  object  dear  in  life. 

I  may  mention,  properly,  in  this  connection,  that  this 
was  no  hallucination.  The  lender,  by  this  very  appoint- 
ment, came  down  with  the  money ;  and  the  whole  pro- 
jected scheme  would  have  been  accomplished  (it  being 
some  eight  or  ten  days  after  the  period  that  -I  have  re- 
ferred to),  when  he  is  met  with  the  astounding  intelligence 
that  Morgan  Hinchman  is  a  madman.  Now,  sir,  bring- 
ing these  matters  to  a  focus,  you  will  understand  what 
their  bearing  is.  The  plaintiff  could  have  paid  off  his 
mortgage ;  he  could  have  relieved  himself  from  his  anx- 
iety ;  his  money  was  all  ready  ;  he  had  but  a  thousand 
dollars  to  take  care  of.  He  would  have  gone  on  prosper- 
ously, and  been  a  blessing  to  his  family ;  and  having  his 
liberty,  would  have  still  toiled,  at  the  expense  of  every 
possible  earthly  convenience  to  himself,  for  the  benefit  of 
his  wife  and  little  ones. 

After  these  events  of  the  afternoon  of  the  6th,  new 
actors  present  themselves  on  the  stage — the  scene  shifts. 
A  grand  divan  is  to  be  held  at  Mrs.  Hinch  man's  on  the 
night  of  the  6th.  The  mother,  Elizabeth  Shoemaker, 
Anna  "W.  Hinchman,  Edward  Richie,  Samuel  Richie 
and  Mrs.  Hinchman,  were  there.  Bear  that  in  mind — the 
number  of  six  is  a  fatal  number  here,  it  seems — they  have 
moved  in  sixes  altogether — six  when  they  arrested  him — 
six  in  the  inquisition — six  everywhere — an  even  number, 
but  an  odd  undertaking.  Of  the  particulars  of  their  de- 
liberation we  are  not  distinctly  informed  ;  and  we  must 
therefore  look  to  the  practical  results,  to  understand  what 
they  determined  to  do,  from  what  they  have  done.  I  can 
only  say  for  the  honor  of  the  wife,  and  woman's  love, 
that  when  Margaretta  Hinchman  was  subsequently  asked : 
u  did  she  ever  consent  in  word,  thought  or  deed  to  the 
perpetration  of  this  outrage  upon  her  husband" — the 
father  of  her  children — she  said  "  she  never  did."  It  runs 


HINCHMAN   CASE.  3C9 

counter  to  the  current  of  the  feelings   of  every   noble 
woman. 

Elizabeth  Shoemaker  says  that  Morgan  lost  his  mem- 
ory :  he  was  one  entire  memory.  He  seemed  to  concen- 
trate all  that  ever  passed  under  his  knowledge ;  and  he 
acted  correctly  with  reference  to  it.  That  is  the  reason 
why  I  asked  Dr.  Evans  the  question — will  not  a  man  who 
has  a  delusion,  as  you  say,  gambol  from  his  subjects  ;  mis- 
conceive or  misrepresent  what  he  has  done  or  said,  just 
before?  "Yes,  that  is  considered  the  great  test."  Sirs, 
no  physician  ever  supplied  that  test.  Shakspeare  supplied 
the  test ; — a  man  whose  mind  embraced  all  things — whose 
genius  pervaded  everything, — who  was  a  better  chemist — 
a  better  metaphysician — a  better  lawyer — a  better  doctor 
— a  better  gardener — a  better  everything  than  almost  any 
man, — nay  not  almost,  that  is  short  justice, — than  any 
other  man.  What  does  he  say  ?  He  gives  two  tests.  I 
will  not  go  to  Horace,  for  he  is  not  fit  to  hold  a  candle  to 
Shakspeare.  He  gives  you  two  tests.  The  first  is,  quick- 
ness of  pulse.  Hamlet's  mother  plays  the  same  prank 
that  is  played  here,  and  sends  her  son — not  to  the  asylum, 
but  to  England — for  his  insanity.  See  how  he  answers 
when  accused  by  his  mother,  of  ecstacy — which  signifies 
insanity — 

"  Ecstacy  f 

My  pulse,  as  yours,  doth  temperately  keep  time, 
And  makes  as  healthful  music,  it  is  not  madness, 
That  I  have  uttered  :  bring  me  to  the  test, 
And  I  the  matter  will  reword  ;  which  madness 
Would  gambol  from." 

Two  of  the  best  tests  known  to  metaphysicians — one  a 
strictly  medical  test — the  great  excitement  of  the  pulse — 
the  other  re-wording  of  the  matter.  And  sir,  there  is  a 
remarkable  case — which  I  know  your  honor  will  take 
pleasure  in  referring  to,  or  in  allowing  me  to  refer  to — re- 
lated by  Sir  Henry  Halford,  physician  to  George  III, 
and  the  head  of  the  medical  faculty,  at  one  time,  through- 


310  FORENSIC    SPEECHES   OF    DAVID   PAUL    BROWN. 

out  the  world.  He  tells  you  that  he  never  would  have 
been  able  to  detect  insanity,  if  he  had  not  applied  the  test 
that  Shakspeare  gives.  He  begins  it,  by  the  by,  with 
this  very  quotation  from  Shakspeare.  (Reads  from  Hal- 
ford's  Essays.) 

Saturday. — May  it  please  your  honor:  the  time  allotted 
to  complete,  or  rather  to  terminate — for  it  may  scarcely 
be  considered,  complete — the  course  of  the  investigation 
originally  proposed  to  you,  is  too  short,  to  tell  you  how 
short  it  is.  And,  therefore,  gentlemen  of  the  jury,  with-, 
out  resuming  the  former  course  of  observations — except  so 
far  as  it  may  be  absolutely  necessary  in  order  to  its  con- 
tinuance— without  attempting  to  review  it  in  any  way 
(considering  that  "  by  gone  is  by  gone") ;  I  shall  address 
myself  to  that  which  remains.  I  have  but  a  single  re- 
mark to  make — and  that  rather  in  the  way  of  apology — 
and  that  is,that  you  must  not  suppose  that  I  have  over- 
looked many  matters  to  which  I  may  not  particularly  ad- 
vert ;  but  that  you  should  be  inclined  to  excuse  the  omis- 
sion, when  you  bear  in  mind  that  it  is  attributable  in  a 
great  measure,  to  the  desire  to  contribute  to  your  comfort 
or  convenience.  The  time  is  short,  sir,  as  has  been  said ; 
but  I  am  not  certain  that  it  is  not  adequate  to  the  neces- 
sary purposes  of  the  argument. 

You  may  remember,  gentlemen,  I  took  leave  of  you 
yesterday,  after  having  adverted  to  the  grand  divan,  as- 
sembled at  the  house  of  Mrs.  Eliza  Hinchman  upon  the 
night  of  the  6th.  I  only  recur  to  that  as  a  sort  of  start- 
ing point  for  the  course  I  am  now  about  to  pursue ;  and 
for  the  purpose  of  asking  you  to  bear  in  mind  that  of  the 
six  assembled  at  that  time,  there  were  Edward  Richie, 
Samuel  Richie,  Anna  W.  Hinchman,  and  Eliza  aeth  Shoe- 
maker, four  defendants.  The  mother  was  there ;  she  ia 
not  one  of  the  defendants ;  and  the  wife  was  there — she 
is  not  embraced. 

Now,  gentlemen,  the  next  stage  in  our  journey  presents 
a  new  scene.  Immediately  from  the  house  of  Eliza  Einch- 


HINCHMAN   CASE.  311 

man,  where  these  four  persons  were  assembled,  Edward 
and  Samuel  Richie  proceeded  to  the  house  of  Mr.  White  ; 
and  they  induce  Mr.  "White  to  join  with  them  in  the  effort 
to  secure  Morgan  Hinchman,  although  as  Mr.  White  him- 
self says,  he  "  never  saw  anything  irregular  in  Morgan 
Hinchman  in  his  life."  They  induce  him  to  call  at  the 
house  of  Robert  Richie,  the  father.  He  does  not  suc- 
ceed in  finding  him.  Edward  and  Samuel  Richie,  who 
figure  at  every  point,  go  with  him  next  to  the  tavern. 
Now  where  there  are  bad  beginnings — where  there  are 
hypocritical  schemes  resorted  to — depend  upon  it,  in  nine 
instances  out  of  ten,  the  sequel  will  be  worthy  of  the  in- 
troduction. 

They  build  the  whole  proceeding  upon  his  sanity,  while 
they  accuse  him  of  insanity.  Well  knowing  that  there 
had  been  a  negotiation  between  Mr.  White  and  Mr. 
Hinchman,  months  before,  in  relation  to  the  house  in 
Marshall  street,  they  suggest  to  Mr.  White  to  make  that 
the  basis  for  the  postponement  of  Mr.  Hinchman's  depart- 
ure to  the  next  morning ;  in  order  that  they  may  then  ar- 
rest him.  What  do  you  say  to  this  ?  There  is  no  mental 
reservation  about  it :  I  will  venture  to  go  so  far  as  that. 
But,  is  not  there  a  scheme,  a  plot,  a  combination  ;  or  indi- 
cation of  pre-existing  conspiracy?  Mr.  White  goes  in, 
sir,  and  comes  out,  and  does  not  find  Morgan  Hinchman. 
It  is  the  night  before  poor  Morgan's  departure— exhausted 
and  worn  out  with  the  course  of  the  day's  events,  or  loss 
of  rest  the  preceding  night,  incurred  in  his  line  of  duty, 
he  is  reposing  upon  a  buffalo  skin,  which  rests  upon  a  bench, 
and  Mr.  White  did  not  perceive  him.  Then  comes  in  Mrs. 
Richie,  while  the  other  Mr.  Richie,  being  a  sentinel,  ia 
looking  in  at  the  window — just  recall  this  scene. — Mr. 
Richie  discovers  him;  and  instead  of  going  up  like  a 
man  and  a  Christian,  and  employing  some  measures  for  the 
purpose  of  ascertaining  whether  the  suggestions  that  had 
been  made  in  relation  to  his  sanity,  were  well  founded — for 
it  does  riot  appear  that  he  had  had  any  intercourse  with  him 


312  FORENSIC   SPEECHES   OF  DAVID   PAUL   BROWN. 

for  months — instead  of  going  up  and  saying,  "  Morgan,  I 
wish  to  have  some  conversation  with  you,"  and  then  talk- 
ing over  matters  to  satisfy  his  mind ;  he  skulks  and  shrinks, 
and  dare  not  encounter  the  eye  of  his  victim.  Thus 
"  consicence  doth  make  cowards  of  us  all."  Mr.  White 
is  to  do  the  work ;  for  being  innocent,  he  is  bold.  He 
acts  upon  the  suggestions  of  Samuel  Richie — who  figures 
most  unfavorably  in  every  branch  and  scene  of  this  trans- 
action, from  beginning  to  end.  Mr.  White  rouses  Mr. 
Hinchman,  shakes  hands  with  him — the  old  habit  of  be- 
traying with  a  kiss,  having  grown  into  disuse.  How  did 
he  look  ?  Perfectly  well.  Was  there  anything  irregular 
about  him?  Nothing  at  all.  Did  he  talk  rationally? 
Entirely  so.  When  you  spoke  of  the  house,  did  he  re- 
member the  arrangements  previously  suggested  ?  Yes,  sir^ 
he  told  me  I  had  better  buy  the  house.  Now,  may  it 
please  your  honor,  you  may  make  any  man  crazy  when 
the  wind  is  north-nortnwest ;  but  when  it  is  southerly,  he 
may  distinguish  between  "  a  hawk  and  a  handsaw."  Still, 
there  is  not  a  man  that  1  have  the  honor  to  address,  that, 
embracing  eight  years  of  his  life,  can  exhibit  a  course  of 
character  more  consistent  with  honesty  ;  and  one  portion 
more  consistent  with  another  ;  and  more  entirely  adapted 
to  right  reason,  than  the  plaintiff  has  done.  Well,  he 
makes  the  appointment,  and  what  does  our  friend,  Mr. 
Williams,  say  to  this? — for  whatever  he  says  is  entitled 
to  regard — but  this  is  rather  an  astonishing  manifesta- 
tion of  candor !  He  says  they  don't  deny  that  this  was  a 
contrivance — a  scheme.  No !  they  don't  deny  it ;  because 
we  have  Mr.  White  to  prove  it.  This  is  another  specimen 
of  liberality.  So,  Mr.  Scattergood  doesn't  deny  that  Ben- 
jamin Warder  signed  the  order — after  we  had  got  the  fact 
Irom  him.  Mr.  Benjamin  Warder  doesn't  deny  it — after 
Mr.  Scattergood  proved  it.  I  want  you  to  understand 
this. — If  you  once  understand  it,  you  will  have  no  diffi- 
culty in  relieving  yourself  from  embarrassment. 
Now  does  the  gentleman  ask  me  for  a  motive  ?  Why 


HINCHMAN   CASE.  313 

the  very  lust  of  power,  in  little  men,  is  a  sufficient  motive 
for  nine-tenths  of  what  they  do.  Has  that  never  struck 
you  ? — their  very  desire  of  playing  the  despot — the  desire 
for  notoriety  in  consigning  a  fellow  man  to  a  public  or  any 
other  institution — the  desire  of  notoriety  in  a  profession  of 
charity,  in  interposing  to  assist  the  wife — as  they  would 
have  us  to  understand — the  wife  who  had  not  one  pirti- 
cle  to  do  with  the  matter !  But  there  are  other  motives 
that,  in  the  progress  of  my  remarks — without  making 
them  now  distinct  and  independent  subjects  of  inquiry — 
will  present  themselves  clearly  to  the  mind. 

The  next  morning,  who  comes  ?  Why  they  were  drum- 
ming up  all  the  recruits.  You  ask  me  to  show  that  there 
was  a  combination.  By  some  strange  influences,  at  all 
events — some  sullen  influences,  as  they  will  prove  to  be 
— these  six  men  all  assemble  punctually  at  eight  o'clock. 
How  do  they  come  together  ?  Do  you  want  me  to  prove 
that  they  sat  in  conclave — that  they  pre-arranged  that 
Mr.  Elkinton  was  to  play  the  Napoleon  of  this  iron  band 
— that  he  was  to  be  the  leader — that  when  force  was 
necessary,  he  was  to  suggest  it — that  Mr.  Whitall  was  to 
play  police  officer,  assisted  by  Mr.  Edward  Richie,  who 
was  posted  inside  of  the  prison  ?  We  are  forced  to  sup- 
pose, from  all  this,  that  it  was  well  understood  by  the 
friends — it  was  very  systematic  either  for  good  or  evil. 
There  they  were — I  have  gone  through  with  what  was 
said,  and  I  mean  to  go  through  with  it  again.  The  re- 
marks of  Morgan  Hinchman,  his  remonstrance,  his  desire 
to  settle  up  some  pending  transactions  in  relation  to 
property — nothing  will  do — you  must  go;  and  if  you 
won't  go  willingly,  you  must  go  by  force.  One  takes  him 
on  one  side,  another  on  the  other,  and  drag  him  down 
stairs — there,  says  my  learned  friend,  "  he  placed  his  hand 
upon  the  bar ;"  that  is  very  true.  But  he  seized  the  bar, 
and  attempted  resisting  as  far  as  he  could  with  propriety ; 
because,  let  the  battle  end  as  it  would,  he  would  be  the 
sufferer  in  public  estimation — he  would  have  cloven  down 


314  FORENSIC   SPEECHES   OP   DAVID    PAUL    BROWN1. 

his  own  character ;  for  come  what  must,  the  people  would 
understand  that  he  was  an  alleged  madman.  He  was 
sensible  enough  for  that ;  besides  he  was  in  the  hands  of 
the  overseers — that  was  enough ;  he  was  "  cribb'd,  cabin'd, 
and  confined."  Well,  what  do  they  do?  They  wrench 
him  away  with  violence ;  they  force  him  into  what  ?  Into 
his  own  carriage,  says  our  learned  friend.  Is  that  a  miti- 
gation of  the  offence  ?  A  man's  carriage  is  valuable  only 
to  him,  if  I  understand  it  rightly,  because  he  goes  in  it 
when  he  pleases,  and  comes  out  when  he  pleases.  Does  it 
diminish  the  enormity  of  the  crime,  sir,  that  at  the  same 
time  they  control  his  person,  they  exercise  control  over 
his  property  ?  Is  it  not  rather  an  aggravation  of  the 
original  offence  ?  Why,  allow  me  to  say,  gentlemen  of 
the  jury,  that  those  horses,  had  they  been  sentient  beings, 
would  have  blushed  at  the  occupation  in  which  they 
were  engaged.  Yet  these  gentlemen,  said  to  be  respect- 
able, and  to  a  certain  extent  entitled  to  regard — by  virtue 
of  the  power  which  they  had  been  accustomed  to  exercise 
— and  in  the  reliance  that  they  had  been  accustomed  to 
repose  upon  the  confederated  strength  of  the  institution, 
or  its  character,  if  you  please — actually  do  such  things  in 
public  view  and  in  broad,  blushing  daylight,  as  any  ruf- 
fian in  the  land,  would  shrink  to  look  upon. 

They  take  him,  sir — six  of  them — (Mr.  "Whitall  and 
Mr.  Richie  are  charioteers  by  turns)  and  they  deposit 
him  in  the  asylum ;  which  has  been  so  beautifully  depicted 
to  you — with  deer  parks,  delightful  grounds  and  gravel 
walks,  its  springs  and  fountains,  and  all  that — a  course 
of  exhibition  that  has  been  resorted  to  for  the  purpose  of 
seducing  you  from  your  fealty  to  the  law.  This  is  very 
captivating — it  resembles  the  beautiful  plumage  of  the 
peacock ;  but  when  you  come  to  the  substantial  portion 
of  the  argument,  and  the  ground  upon  which  it  rests, 
you  will  be  disgusted  with  its  odious  and  abhorrent  legs. 
A  beautiful  paradise !  a  paradise  surrounding,  or  enclos- 
ing, if  you  please,  Hesperian  fruit !  All  this  is  charming! 


HINCHMAN  CASE.  815 

but,  do  you  see  the  dragon  beneath  it  ?  Do  you  look  into 
the  cells  and  see  the  wreck  and  ruin  of  the  human  mind  ? 
Do  you  see  the  course  of  treatment,  or  confinement,  calcu- 
lated to  produce  results  with  any  man  who  is  sane;  as 
terrifying  as  those  produced  by  a  visitation  of  Providence  ? 

However,  I  come  there.  Now  fancy  to  yourselves  the 
condition  of  this  man — within  twenty-four,  or  forty-eight 
short  hours,  translated  from  his  happy  home,  without  pre- 
monition, or  even  implication  of  notice — deceived,  deluded 
and  betrayed,  by  craft,  artifice,  and  hypocrisy  in  every 
shape.  Imagine  if  you  can,  for  a  moment,  that  condition 
to  be  yours.  What  have  you  to  say  to  it  ? 

When  the  curtain  next  rises  where,  alas !  do  you  find 
him  ? — The  inmate  of  a  melancholy  mad-house  !  He  goes 
into  the  day-room,  buffeted,  tortured  in  body — and  in 
mind.  The  very  first  thing  that  he  does,  as  if  the  fates 
were  pouring  all  their  quiver  on  him — he  seeks  to  rest 
himself;  to  remove  his  boots  ;  when  the  gruff  keeper  tells 
him  it  is  contrary  to  rule — within  one  hour  after  he  is  re- 
ceived in  this  hospitable  receptacle.  What  does  he  do  ? 
He  mildly  excuses  himself  by  stating  his  sufferings. 
Why,  says  Mr.  Biddle,  he  does  not  rave,  or  break  out,  as 
was  natural,  into  any  storm  or  tempest  of  fury.  No,  they 
had  put  him  past  that.  It  is  lucky  that  he  does  not. 
Suppose  that  he  had  shown  excitement,  what  would  have 
been  the  result?  They  say  when  he  does  anything  he 
must  be  mad  ;  when  he  does  nothing,  he  must  be  mad  ;  if 
he  is  quiet,  he  is  moody  ;  if  he  talks,  he  is  excited  ;  if  he 
is  inclined  to  sleep  after  a  day  of  toil,  that  is  an  indication 
of  his  insanity ;  if  he  wake  up  and  looks  a  little  wild,  he 
is  stark,  staring  mad.  Look  at  these  things,  once  for  all. 
I  cannot  pause  to  go  over  them.  Nay,  more  than  that, 
if  he  make  a  speech  in  Quaker  meeting — if  he  has  the 
hardihood  to  speak  for  one  minute  (the  shortest  speech,  I 
believe,  on  record)  before  these  anointed  elders  and  over- 
seers, and  looks  frightened — and  Heaven  knows  he  had 
cause — Ezra  Comfort  doesn't  understand  him,  and  thinks 


316  FORENSIC   SPEECHES  OF   DAVID   PAUL  BROWN. 

it  was  very  incoherent  and  wild.     I  should  like  to  see  the 
incoherency  of  a  speech  of  one  minute.     As  to  looking 
wild,  I  have  no  doubt  any  man  summoned  before  such  a 
tribunal  as  that,  would  look  wild — where  they  don't  decide 
according  to  the   views  of  the    majority,  though   there 
should  be  one  hundred  and  fifty  to  three  ;  but  according  to 
the  weight  of  the  meeting,  that  is  in  favor  of  the  three  ;  thus 
inverting  the  whole  republican  order.      That  is  not  all. 
Look  at  Priscilla  Jones,  a  tower  of  strength  in  herself, 
and  an  old  maid — I  don't  speak  of  it  as  a  reproach,  but 
for   the   purpose   of    explaining    some   of    her   fantastic 
notions.     She  goes  to  meeting,  and  sees   Morgan   going 
there  also.     He  picks  up  his  boys  in  the  fields,  and  they 
have  no  hats  on.     That  is  a  most  extraordinary  and  un- 
pardonable  offence.     If  each   of   them   had   come   with 
twenty    hats    on — like    Knickerbocker's    Heroine,   with 
twenty  petticoats — it  would  have  been  all  right,  no  doubt; 
but  to  come   without  is   unpardonable.     He   proposes  to 
take  her  home ;  she  does  not  seem  much  inclined,  but  at 
last  concludes  to  go  with  him.     Then,  because  there  is 
something  refractory  in  the  horse,  on  account  of  some  dis- 
arrangement in  the  harness,  he  gets  out  on  one  side  to 
arrange  it ;  and  as  might  have  been  expected,  she  gets  out 
on  the  other.     This  is  most  ridiculous;  but  it  is  not  my 
fault.     And  this  forms  one  of  the  items,  which  contribute 
to   make   up   the  sad   melancholy   insanity   of    Morgan 
Hinchman.     What  else  ?     Why,  says  my  learned  friend, 
he  goes  to  Mrs.  Jones'  house  at  ten  o'clock.     Now,  gentle- 
men of  the  jury,  are  all  the  acts  of  his  life  to  be  tortured 
in  this  way — perverted  and  misconstrued  for  the  purpose 
of  extorting  proof  against  this  unhappy  man  ?     Where 
else  should  he  go?     He  was  remote  from  a  tavern;  and 
besides  being  a  sober  man,  he  does  not  wish  to  go  there  > 
and  if  he  had,  that  would  have  been  considered  a  strong 
mark  of  insanity,  for  there  is  no  escaping  them — it   is 
impossible. 

Well,  he  goes  there  and  takes  his  supper — I  shall  be 


HINCHMAN   CASE.  317 

careful  not  to  take  my  supper  in  Bucks  county,  out  of  a 
tavern.  He  goes  to  bed.  Wonderful  to  relate!  He  gets 
up  in  the  morning,  and  rises  before  any  other  one  in  the 
house  ;  then  this  good  lady — I  won't  call  her  old,  that  is 
an  unpardonable  sin,-  too — hearing  him  walking  about, 
takes  for  granted  there  is  something  wrong.  When  he 
came  she  was  given  to  understand,  that  he,  fully  intent 
upon  speculation,  was  desirous  to  see  Mr.  Brown  in  regard 
to  a  purchase.  Perfectly  reasonable  and  right!  And 
being  desirous  of  seeing  him ;  before  beat  of  drum,  in  the 
morning,  after  having  enjoyed  the  hospitality  of  the 
family,  he  anxiously  moves  back  and  forth  until  this  lady 
comes  down,  when  he  declares  his  design.  Then  what 
does  he  say  ?  u  I  should  have  gone  away  without  waiting  for 
you,  but  I  thought  you  would  think  me.  crazy" — a  very  ordi- 
nary phrase — "  and  therefore  I  have  remained."  Gracious 
powers !  if  that  is  to  be  the  course  by  which  insanity  is  to 
be  established,  good-bye  to  security  in  man.  I  am  not 
going  through  all  these  matters — I  merely  cursorily  advert 
to  them.  I  ask  you  to  examine  them,  and  carry  out  the 
thought  I  suggested  in  the  former  part  of  my  argument, 
which  is  this ;  that  none  of  these  things  were  known  or 
thought  of,  at  the  time  this  arrest  was  made ;  but  having 
by  a  false  step  involved  themselves  in  difficulty  irremedia- 
ble, they  have  sounded  their  trumpet  through  the  ranks 
of  their  confederates,  and  brought  forward  a  sort  of  ex 
post  facto  history  of  the  transaction,  upon  which  they 
attempt  to  sustain  a  most  flagitious  course,  adopted  by 
them  in  regard  to  this  plaintiff.  That  is  the  true  inter- 
pretation. I  will  not  return  to  it  again.  My  object  is 
now  to  interweave  into  the  web  of  this  case  every  one  of 
these  defendants ;  without  making  the  inquiry  as  to  their 
identification  with  the  primary  outrage,  a  subject  of  inde- 
pendent consideration. 

He  is  consigned  to  a  maniac's  cell.  There  are  special 
orders  for  his  strict  confinement — he  is  not  left  upon  the 
general  rules  of  discipline— he  is  not  left  in  the  ordinary 


318  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

way — he  is  not  left  upon  the  certificate  of  his  phj'sician. 
Don't  be  led  astray,  and  induced  to  believe  that  Dr.  Kite 
was  ever  his  physician.     Dr.  Kite  was  one  of  his  persecu- 
tors.    Dr.  Kite  was  the  man  who  united  with  the  mother 
in  the  original  communication  to  the  meeting,  with  regard 
to  the  aft'air  of  the  apple  tree.     Dr.  Kite  was  the  man, 
together  with  Mr.  Willits  (the  tall  gentleman  whom  you 
may  remember),  who  waited  upon  Morgan  over  and  over 
again.     Mr.  Willits  stated,  as  the  result  of  the  conversa- 
tion he  had  with  Morgan,  that  he  was  refractory  and 
would  palliate — that  is  he  would  not  confess !     He  would 
not    confess — (most    extraordinary   system   of   jurispru- 
dence!)— because  he  would  not   confess    the  crime,  but 
would  deny  it,  they  thought  he  was  incorrigible.     "  He 
said  he  was  to  blame,  and  regretted  it ;  but  what  they 
charged  was  not  right."     They  reported,  in  a  prejudicial 
state,  to  the  meeting ;  but  strange   to  say,  the  meeting 
certify,  subsequently,   that   he  was  a   member  in   good 
standing.     What  is  the  meaning  of  this?     They  are  not 
"  tricks    upon  travellers,"  but  tricks  of  one  meeting  on 
another.     Don't  let  us  be  misapprehended.     They  certify 
him  to  be  a  member  in  good  standing ;  which  they  never 
should  have  done  if  they  had  not  thought  him  so.    How- 
ever, Dr.  Kite  prepares  his  certificate.     Under  that,  Mor- 
gan Hinchman  is  confined  as  an  insane  man.     Now  this 
certificate  of  Dr.  Kite  has  no  bobtail — no  such  appendage 
as  is  required,  setting  forth  residence,  age,  disease,  symp- 
toms, &c.     It  shows  a  most  unholy  haste.     There  is  that 
in  it  which  is  most  truly  extraordinary.     He  knows  Mor- 
gan Hinchman  to  be  insane — he  knows  it ;  and  yet  he  has 
not  seen  Morgan  Hinchman  for  four  months,  as  he  subse- 
quently confesses.     When  he  was  called  upon,  and  was 
asked  to  explain  how  he  could  sign  a  certificate  of  that 
character,  stating  u  that  he  knew  Morgan  Hinchman  was 
insane,"  he  says  he  knew  perfectly  well  six  months  ago 
that  he  would  become  mad  just  about  that  time.     Look  at 
this.      It  is   a  very   serious   matter,   gentlemen.      It   is 


HINCHMAN   CASE.  319 

nothing  to  be  certified  into  a  mad-house  in  our  present 
condition ;  but  to  be  certified  by  anticipation  or  prospect, 
or  even  retrospect,  is  a  little  too  much.  Suppose  they  al- 
leged what  was  the  condition  of  his  body  ;  then  we  should 
have  had  something  to  have  laid  our  fingers  upon,  in- 
stead of  engaging  in  metaphysical  discussions.  But  to 
this  moment  nobody  has  shown  that  he  was  ever  sick. 
Perhaps  that  was  a  crime — that  he  never  had  occasion  for 
the  doctors.  It  is  true,  they  made  him  sick,  as  well  they 
might,  after  he  was  confined  in  the  asylum  ;  but  until  he 
got  there,  I  ask  any  one  to  show  me  where  is  the  human 
being,  medical  or  otherwise,  who  has  ever  rendered  him 
a  service  as  a  physician. 

They  take  the  plaintiff's  account  in  the  hospital,  for 
the  purpose  of  showing  the  state  of  his  body ;  and  at 
that  time  they  contend  he  was  mad.  When  you  under- 
stand that  he  was  appealed  to  (towards  the  close  of  his 
confinement),  to  acquiesce  in  the  views  of  the  doctors — 
"  that  the  moment  he  admitted  that  he  was  insane,  they 
would  consider  him  sane," — you  may  suppose  Morgan 
Hinchman  was  sane  enough  to  know,  that  if  he  did  not 
comply  with  .their  theory,  he  never  would  be  released  at 
all.  Here  is  Dr.  Kite's  certificate  ;  and  where  Benjamin 
Warder  signed  it,  Heaven  only  knows.  Mr.  Bettle  never 
saw  that  order  until  it  was  brought  to  town.  There  is 
much  mischief  here.  Mr.  Bettle  says  he  has  no  recollec- 
tion of  ever  having  signed  such  an  order  of  admission. 
Now  observe  the  management.  He  is  not  brought  in,  as 
long  as  the  question  could  be  agitated  whether  Mr. 
Warder  signed  it  or  not.  But  the  moment  Mr.  Scatter- 
good  puts  it  beyond  the  necessity  or  reach  of  argument, 
they  introduce  Mr.  Bettle.  And  it  is  most  remarkable 
that  Mr.  Bettle,  who  appears  to  have  signed  it,  did  not 
remember  that  he  ever  signed  it  at  all ;  or  that  Mr. 
Warder  had  anything  to  do  with  it.  I  don't  consider 
that  an  overruling  circumstance.  But  I  want  to  show 
you  what  the  memory  of  man  is.  After  the  lapse  of  two 


320  FORENSIC   SPEECHES   OP   DAVID    PAUL    BROWN. 

years — while  he  professes  to  state  words  and  minute  cir- 
cumstances— he  forgets  that  he  signed  his  name  to  the 
paper  in  question,  when  it  makes  adverse  to  the  interest 
of  the  cause.  Benjamin  Warder  undoubtedly  signed  it ; 
and  Benjamin  "Warder  is  not  to  escape.  He  is  one  of  the 
persons  to  whom  Mrs.  Hinchman  sent  an  invitation  to 
the  grand  divan.  If  you  will  connect  probable  cause 
with  the  actual  effect,  you  will  have  no  difficulty  in  un- 
derstanding it.  The  agent  of  Elizabeth  Clarke,  a  woman 
who  has  figured  in  another  scene — the  individual  who 
interposed  to  rescue  Mrs.  Dinah  Taylor  from  the  terrors 
of  a  snow  bank. 

They  seem  to  suppose  that  in  the  establishment  of  con- 
spiracy, it  is  necessary  that  we  should  bring  every  man 
in  contact  with  another,  to  show  joint  guilt.  It  is  no 
such  thing.  I  will  convict  six  men  of  conspiracy,  and 
never  show  that  they  were  together — that  they  ever 
actually  communicated  one  with  another.  Your  honor 
may  perhaps  remember  the  famous  case,  decided  by  Lord 
Mansfield,  where  a  family  of  card  makers  was  in  a  pros- 
perous business  ;  and  it  happened  that  some  rival  artisans 
in  their  line,  regularly  had  glue  put  into  their  paste  pot. 
Each  one  of  the  six  was  shown  to  have  been  separately  con- 
cerned ;  but  no  man  knew  of  any  correspondence  between 
them.  The  relationship  that  existed  in  this  case  was 
manifested  by  the  consistency  of  the  conduct  of  the 
whole  six.  They  were  all  engaged  in  the  same  medium  ; 
prosecuting  the  same  purpose ;  although  they  were 
never  seen  together ;  being  of  the  same  family,  engaged 
in  the  same  trade ;  and  in  the  same  rivalry:  when  you 
combine  all  these  together,  you  cannot  fail  drawing  the 
inference  that  they  were  combined  together.  So  it  is  in 
respect  to  this  case.  We  are  not  to  be  eluded  in  this 
way. 

But  to  return.  The  plaintiff  is,  as  I  have  said,  deposi- 
ted in  a  mad-house  by  this  certificate — by  this  interfer- 
ence on  the  part  of  the  gentlemen,  in  the  way  that  I  havo 


HINCHMAN  CASE.  321 

stated — and  there  he  remains  for  six  long  months.  He  is 
kept  in  strict  confinement — more  strictly  confined  than 
any  other  man  in  that  house.  Eemember  that.  Mr. 
Garrett  says,  in  excuse  for  that  strictness,  that  such  were 
the  orders  of  his  friends.  This  is  a  matter  my  learned  op- 
ponent seems  to  have  forgotten.  Undue  strictness — un- 
usual severity,  applied  to  a  man  in  his  condition,  by  the 
order  of  his  FRIENDS.  This  is  the  declaration  of  Mr.  Gar- 
rett, one  of  the  agents,  binding  upon  him ;  and  showing 
the  general  character  of  the  transaction.  And  when  you 
come  to  the  admission,  "  that  it  had  been  a  mere  family 
quarrel,  and  if  he  would  arrange  his  property,  there 
would  be  no  more  of  it,"  or  something  to  that  effect ;  the 
secret  is  all  out.  Here  he  remains  night  after  night, 
month  after  month,  as  I  have  said,  in  worse  than  a  char- 
nel  house  ;  surrounded  by  the  fragments,  if  I  may  use  the 
phrase,  not  of  the  body,  but  of  the  immortal  mind.  His 
condition  rendered  more  intolerable  from  his  not  sharing 
in  any  of  the  delusions  of  those  by  whom  he  was  sur- 
rounded. He,  a  sane  man,  encompassed  by  gibbering 
idiots  and  raving  maniacs — enough  to  drive  any  man  rnad 
— for  there  is  something  contagious  in  moral  insanity,  as 
in  other  diseases.  There,  alas !  he  sits — 

No  pleasing  memory  left — forgotten  quite 

All  former  scenes  of  dear  delight. 

Connubial  love— parental  joy, 

No  sympathies  like  these  his  mind  employ, 

— But  all  is  dark  within — all  furious  black  Despair. 

Let  us  step  out  of  the  mad-house  for  a  moment,  and 
see  how  his  mother  is  engaged.  She  goes  on  the  8th,  in 
the  evening  (the  day  after  he  was  confined),  to  Mr.  Eli  K. 
Price.  (Interrupted  by  opposite  counsel.)  "  The  petition 
was  sworn  to  on  the  9th."  That  will  do.  That  is  coming 
to  the  "chalk."  I  only  want  something  definite.  Does 
not  your  honor  remember  that  it  was  part  of  the  argu- 
ment, that  the  wife,  accompanying  Mrs.  Hinchman,  went 

21 


322  FORENSIC   SPEECHES   OP  DAVID   PAUL   BROWN. 

to  Eli  K.  Price,  and  there  witnessed  the  oath  to  the  peti- 
tion, thus  making  herself  guilty  of  moral  perjury?  Mrs. 
Morgan  Hinchman  was  safely  at  Morgan  Hinchman's 
farm  on  the  9th,  in  company  with  Mr.  Richie.  (Inter- 
rupted by  counsel  for  defendants.)  I  have  no  wish  to 
steal  any  conquest.  I  wish  to  come  at  it  fairly.  I  say 
that  Forkner  and  his  wife,  and  Hall,  all  say,  that  Samuel 
Richie,  Mrs.  Hinchman,  and  Elizabeth  Shoemaker, 
arrived  on  sixth  day  (which  is  the  8th  of  the  .month) ; 
and  that  Samuel  Richie  remained  there  until  the  next 
Monday,  or  second  day.  How  could  Mrs.  Morgan  Hinch- 
man be  present  with  Mrs.  Eliza  Hinchman  at  the  time  of 
taking  this  oath  on  the  9th,  at  Philadelphia,  when  she 
was  at  Doylestown,  which  is  twenty  miles  off'?  It  was 
executed  on  the  9th.  (Discussion  between  the  counsel.) 
The  argument  of  my  learned  friend  was,  that  Mrs.  Mor- 
gan Hinchman  was  guilty  of  moral  perjury,  because  she 
stood  by  and  approved  of  it.  Now  Mrs.  Morgan  Hinch- 
man was  twenty-five  miles  oft'  on  the  9th.  How  then 
could  she  approve  of  it  on  the  9th?  That  was  the  bulk 
of  his  argument.  If  this  can  be  answered,  I  am  ready  to 
hear  the  answer  now,  or  at  any  time.  And  yet  she  is  said 
to  be  guilty  of  moral  perjury  for  joining  in  an  oath — an 
oath  which  she  never  knew  of.  There  is  nothing  that 
can  be  relied  upon,  in  this  inconstant,  transitory  world. 
See  what  memory  is,  when  it  comes  to  words  and  to 
dates.  All  that  argument,  goes  for  nothing.  She  never 
did  approve  of  it.  I  am  anxious  to  retrieve  an  honest, 
artless  woman  from  the  imputations  of  injustice.  These 
things  were  carried  on  in  secret — covertly  carried  on. 

"When  they  arrive  at  Plumstead,  what  else  takes  place  ? 
"Why,  do  you  forget?  They  say  that  Elizabeth  Shoe- 
maker had  nothing  to  do  with  it.  I  will  show  you  that 
she  was  as  active  as  almost  any  other  person  engaged  in 
the  matter.  Don't  you  remember  the  whispering  con- 
versation between  Elizabeth  Shoemaker  and  Samuel 
Richie ;  in  which  she  objected  to  sending  Forkner  to 


HINCHMAN   CASE.  323 

the  almshouse,  because  it  might  lead  to  disclosures?  Do 
you  remember  that  ?  You  see  I  aru  interweaving  these 
people  as  I  proceed.  When  Forkner  and  Richie  go  to 
the  asylum,  Forkner  asks  Samuel  Richie  to  be  permitted 
to  see  Morgan.  Richie  told  Forkner  that  he  was  "  down 
there," — whether  he  pointed  to  the  south,  or  in  a  more 
dangerous  direction,  I  do  not  know.  But,  when  ques- 
tioned more  particularly,  he  said  he  was  in  the  asylum — 
that  Morgan  was  to  be  considered  a  dead  man.  I  was 
about  to  say,  I  almost  wish  he  could  have  been  so  con 
sidered.  Death  would  have  been  a  blessing  to  him. 
"  That  he  was  to  be  considered  as  though  his  horses 
had  run  away  with  him  and  killed  him;"  and  the  infer- 
ence was  that  Mr.  Richie  was  to  be  the  executor.  He 
was  certainly  consigned  to  a  living  death.  How  far  he 
would  be  justified  in  being  executor,  I  will  leave  to 
others. 

Well,  sir,  they  go  to  the  asylum  ;  there  a  very  touching 
scene  is  presented. — Jesse  asked  to  be  permitted  to  see 
him.  What  harm  could  there  have  been,  according  to 
the  strictest  discipline  ?  No,  he  cannot  be  allowed  to  see 
him.  Why  not?  because  "he  has  got  his  head  shaved, 
or  he  may  be  having  it  shaved  now."  Look  at  this — 
very  insignificant,  to  be  sure,  but  making  against  them, 
when  it  tends  to  show  what  were  the  motives,  and  what 
the  direction  of  these  motives.  Well,  while  they  were 
talking,  this  man,  Forkner,  not  being  allowed  to  go  in, 
looking  up  into  the  second  story,  saw  poor  Morgan,  look- 
ing, not  through  an  iron  grating,  but  through  panes  of 
glass  with  iron  sashes.  I  give  you  this  as  the  most  fa- 
vorable exhibition  you  can  have  of  the  institution.  Mor- 
gan signified  that  he  would  like  him  to  go  round  and 
come  in  at  another  gate.  Just  then -Mr.  Richie  came 
out ;  and  poor  Forkner  says  be  was  moved  to  tears  in 
seeing  Morgan  appearing  exactly  as  he  always  had.  That 
is  his  simple  mode  of  expressing  it.  He  said  to  Samuel 
Richie,  in  the  fulness  of  his  heart,  "I  would  give  ten 


324  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

dollars,  poor  as  I  am,  to  have  one  minute's  conversation 
with  Morgan." 

There  is  a  manifestation,  not  of  the  feelings  of  a  culti- 
vated man,  but  of  an  unsophisticated  man,  retaining 
those  warm  emotions  that  were  infused  into  him  by  his 
Creator.  "No,  you  cannot  do  that;"  and  he  is  car- 
ried off. 

Next,  the  defendants  go  through  all  this  machinery  in 
relation  to  the  sale  of  his  property — killing  the  hog,  not 
the  fatted  calf — returning  and  disposing  of  the  property 
with  an  unholy  haste.  There  is  an  entire  mastery  exer- 
cised over  that  farm  by  Samuel  Richie  and  the  rest — 
every  thing  meddled  with  and.  managed  by  them ;  this 
poor,  heart-broken  woman  scarcely  comprehending  what 
had  been  done  or  what  was  about  to  be  done,  could  not 
oppose  any  resistance  to  the  power  by  which  she  was  con- 
trolled. Here  they  are  acting  upon — remember  that — the 
supposition  that  "  Morgan's  horses  had  run  off  with  him, 
and  killed  him," — instead  of  their  running  away  with  him 
and  horses — and  they  go  on  using  the  property  as  if  it  were 
their  own.  But  that  is  not  all — after,  may  it  please  your 
honor,  they  have  got  the  affidavit — that  has  been  made  so 
much  of  by  Mr.  Williams — it  is  forwarded  to  Doylestown  ; 
and  Mr.  Du  Bois,  in  the  month  of  February,  obtained 
from  the  court  the  appointment  of  John  D.  Miche- 
ner  as  the  commissioner.  John  D.  Michener,  as  that 
commissioner,  received  the  commission,  on  the  night  it 
was  granted,  from  Samuel  .Richie  himself.  Don't  you 
see  how  they  are  connected  ?  we  cannot  move  an  inch 
with  one,  without  running  foul  of  another.  I  cannot 
trace  all  their  dark  and  secret  meanderings ;  but  what 
they  do  in  public  is  what  we  can  trace — and  there  is  no 
room  for  any  other  inference  than  that  they  were  asso- 
ciated, soul  and  body,  in  this  case.  What  does  Mr.  Miche- 
ner do  ?  He  comes  down  immediately,  and  arrives  upon 
the  evening  of  the  4th,  and  takes  up  his  lodgings  at  the 
house  of  Mrs.  Hinchman  ;  and  in  the  morning  she  accom- 


HINCHMAN   CASE.  325 

panies  him  to  Mr.  Wm.  Biddle,  one  of  her  friends  and  one 
of  these  defendants — and  Wm.  Biddle  accompanies  the 
commissioner,  with  that  commission  in  his  hand,  down  to 
Eli  K.  Price,  and  there  he  takes  leave  of  them.  Now  they 
say  Wm.  Biddle  had  nothing  to  do  with  it — that  is  some- 
thing to  do  with  it.  But  if  you  will  look  to  the  language 
of  Mr.  Biddle,  when  the  certificate  of  the  recantation  of 
John  D.  Michener  was  read  in  the  house  of  Elizabeth 
Shoemaker,  you  will  bear  in  mind  that  he  says — and 
nothing  is  stronger  than  a  man's  own  declaration  : — "  I 
would  have  thee," — resuming  the  character  ot  the  INQUISI- 
TOR, and  turning  to  Morgan,  who  had  just  escaped  from 
his  confinement  in  the  asylum — "  I  would  have  thee  and 
thy  uncle"  (this  respectable  man,  Mr.  Samuel  Fisher, 
who  has  not  escaped  them),  "  I  would  have  thee  and  thy 
uncle  understand  that  1  have  been  concerned  in  this  matter 
from  beginning  to  end" — will  that  do  ?  "  And  I  would 
have  thee  iurther  understand  that  lam  determined  to  see 
it  out"  Now  the  only  question  is,  whether  you  will  let 
him  see  it  out.  This  is  no  imagination,  there  is  his  own 
testimony ;  there  is  his  own  avowal.  Well,  sir,  what 
then  ?  Why,  they  say,  that  Wm.  Biddle  was  not  im- 
properly placed  upon  that  inquest ;  I  only  say  to  you 
that  Mr.  Thomas  Wistar  said  that  tliey  had  appointed 
Mr.  Wm.  Biddle,  Mordecai  L.  Dawson,  and  Edward  Bon- 
Ball,  three  of  their  own  friends  ;  and  that  the  list  had  been 
handed  to  the  deputy  sheriff — I  suppose  Mr.  \Volf.  I 
say  to  you  further,  that  Edward  Richie  stated,  Wm. 
Biddle  had  drawn  up  the  list,  and  that  he  (Richie)  car- 
ried it  to  John  L.  Wolf.  I  hope  that  has  not  escaped 
your  honor's  attention.  Upon  the  result,  produced  by 
the  concentration  of  ail  these  facts  upon  the  point  under 
consideration — not  taking  any  insulated  circumstances 
into  consideration — what  question  can  there  be  ?  But  I 
will  show  it  to  you  besides.  There  is  no  man  who  has 
more  respect  for  the  word  of  a  respectable  man,  than  I 
have,  and  the  sheriff  is  a  respectable  man.  They  bring 


326  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

the  sheriff — not  the  deputy  sheriff — for  the  purpose  of 
showing  that  he  appointed  Wm.  Biddle,  Mordecai  L. 
Dawson,  and  Edward  Bonsall,  without  any  suggestion 
from  any  body  ;  and  yet,  as  you  will  find  from  his  testi- 
mony, he  thinks  Mr.  Wolf  did  recommend  Mr.  Bonsall, 
as  being  the  sou  of  an  old  superintendent — but  when  he 
is  called  upon  two  years  after  the  event,  how  can  you  ex- 
pect any  officer,  who  has  been  but  two  months  in  his  post, 
surrounded  with  diversified  scenes  and  cases,  to  remember 
exactly  what  took  place  in  the  course  of  that  morning, 
when  he -was  first  called  to  make  an  inquisition?  He 
gives  you  nothing  explanatory  of  the  case,  but  refers  you 
to  John  L.  Wolf,  with  whom  this  paper,  as  I  suppose, 
had  been  left  the  day  before. 

I  come  to  another  topic.  Is  it  not  perfectly  certain 
that  the  sheriff  said,  he  never  appointed  those  gentlemen 
upon  any  inquest,  before  ?  Is  it  not  equally  certain  that 
he  never  appointed  them  on  any  inquest  after  ?  Is  that 
denied  ?  No !  How  is  that  ?  Is  it  not  a  little  remark- 
able ?  Is  it  not  wonderful  ?  Is  it  not  miraculous,  that 
never  having  been  appointed  before,  and  never  after- 
wards, his  mind  should  fix  upon  Bonsall,  Biddle,  and 
Dawson,  the  very  names  designated  by  Thomas  Wistar 
and  Edward  Richie ;  and  that  he  should  travel  the  dis- 
tance of  half  a  mile  for  the  purpose  of  selecting  them; 
and  that  he  should  select  among  them  the  very  man  that 
fifteen  minutes  before  had  gone  down  to  the  office  of  the 
counsel  for  the  petitioner? 

(The  sheriff's  cross-examination  and  examination  was 
here  read.) 

Well,  now,  you  observe  exactly  what  is  the  operation 
of  this  reasoning.  I  said  that  it  was  probable  that  Mr. 
Wolf  made  the  suggestion  to  Mr.  Lelar,  and  my  friends 
sustain  that  view ;  for  the  sheriff  himself  says  after  two 
years  have  elapsed,  he  can  remember  enough  to  say  that 
he  thinks  it  probable  Mr.  John  L.  Wolf  suggested  to  him 
that  "  there  was  Mr.  Bonsall."  Is  not  this  a  most  extra- 


HINCHMAN  CASE.  327 

ordinary  chapter  of  accidents?  Edward  Richie  stating 
that  he  had  served  this  list  upon  Wolf;  and  that  list  con- 
sisting of  men  who  were  never  selected  before  or  after ! 
But  what  is  a  little  more  extraordinary — it  is  proved  that 
William  Biddle  expressed  some  surprise  at  his  appoint- 
ment I  What  is  the  meaning  of  this  ?  What  is  the 
meaning  of  moral  acquiescence,  and  moral  perjury  ? 
What  is  the  meaning  of  the  suggestion  that  Mrs.  Hinch- 
man  was  guilty  of  moral  perjury  when  in  Doylestown, 
while  the  mother  took  the  affidavit  ?  What  is  the  mean- 
ing of  Mr.  Biddle  being  surprised  at  being  called  upon,  if 
he  had  written  out  the  list,  or  if  he  had  been  named  on  it 
before,  or  when  in  Price's  office,  on  that  particular  busi- 
ness ?  If  you  can  attribute  this  to  the  "  error  of  the  moon," 
and  result  of  chance  ;  you  can  go  further  in  credulity  than 
any  twelve  men  I  have  ever  known.  Remember  that, 
and  see  whether  you  believe  that  this  was  all  news  to  Mr. 
Biddle ;  go  further,  and  inquire  whether  you  are  to  be- 
lieve Mr.  Biddle  or  not,  when  he  said  he  had  been  en- 
gaged in  the  business  from  beginning  to  end. 

But,  however  this  inquisition  was  formed,  is  there  not 
an  obvious  omission  here  upon  so  critical  a  turning  point? 
Where  is  Mr.  Wolf?  He  is  within  trumpet  sound  of  this 
place.  He  is  probably  within  the  hearing  of  my  voice  at 
this  time.  He  is  the  deputy  sheriff ;  he  is  one  of  the  in- 
dividuals who,  it  is  thought,  made  the  suggestion :  he 
could  answer  at  once  whether  he  received  such  a  com- 
munication from  Edward  Richie.  They  very  conveni- 
ently shove  by  him,  arid  shuffle  up  the  sheriff,  to  the  top 
of  the  pack  of  their  witnesses. 

(Mr.  Williams  interrupts.)  "  Why  did  you  not  produce 
him?"  (Mr.  Brown  continues.)  Why  did  we  not  pro- 
duce him  I  We  had  been  already  sufficiently  in  your  care 
and  keeping ;  we  had  no  idea  of  going  into  the  enemy's 
camp  to  gather  up  recruits.  Why  did  not  you  bring  him? 
it  was  necessary  to  himself — it  was  necessary  to  the  char- 
acter of  his  office — it  was  vitally  necessary  to  the  support 


328  FORENSIC   SPEECHES   OP   DAVID   PAUL    BROWN. 

of  the  defence  ;  and  with  all  these  inducements  I  marvel 
much  that  you  could  resist  them.  They  can't  answer 
that,  it  is  impossible  —  and  thus,  it  is  therefore  sustained 
abundantly  by  proof,  as  it  was  originally  asserted,  to  be  a 
combination  extending  so  far  as  not  only  to  corrupt  every 
generous  feeling,  but  sap  the  sacred  foundations  of  the 
law.  Men  who  are  to  sit  as  judges,  creating  themselves  — 
I  have  not  a  word  further  to  say  to  that.  You  shall 
speak  for  me. 

(Mr.  Biddle  interrupts  to  say  that  there  are  seven  depu- 
ties, and  that  Mr.  "Wolf  is  not  the  only  one.)  Bring  the 
seven  deputies  ;  and  there  are  seven  reasons  why  you  should 
bring  them.  I  supposed  when  you  said,  "  deputy,"  you 
meant  Mr.  Wolf.  There  are  sub-deputies  —  that  is  not 
what  I  speak  of  —  I  mean  the  acting  deputy.  Mr.  Lelar 
speaks  of  Mr.  Wolf  as  his  deputy  —  he  says  he  was  his 
factotum  —  Mr.  Wolf  himself  had  deputies.  Some  of  his 
deputies  were  Mr.  Richie  and  Mr.  Biddle.  Now,  gentle- 
men, whether  rightly  or  wrongly,  they  have  got  their 


They  call  it  an  INQUISITION.  How  appropriate,  though 
how  terrible  the  name.  MERCIFUL  HEAVEN  !  Let  Spain 
no  longer  be  abused  —  no  longer  revile  that  benighted 
region  for  her  folly  and  fanaticism  —  no  longer  reproach 
her  for  her  chains,  her  racks,  and  her  tortures,  and  all  the 
accursed  machinery  of  human  wretchedness,  and  human 
degradation  —  since  here,  in  this  boasted  land  of  equality 
here,  in  this  hospitable  asylum  from  persecution  and 
oppression  —  here,  in  this  thrice  glorious  and  sacred  sanctu- 
ary of  enlightened  liberty  and  equal  rights  —  if  principles 
like  these  are  to  be  tolerated,  advocated,  or  allowed,  every 
doctor  is  a  spy  —  every  lawyer  an  inquisitor  —  every  super- 
intendent a  jailor  —  every  citizen  a  victim,  and  every  domi- 
cile a  dungeon.  (Loud  applause,  which  his  honor  could 
scarcely  restrain.*) 

*  Reporter. 


HISCHMAN  CASE.  329 

An  INQUISITION,  sir !  Let  us  see  how  conformable  were 
its  proceedings  to  its  character.  How  conformable  to  its 
title,  was  the  nature  of  its  principles.  They  are,  partly, 
self-constituted  judges.  Sir,  this  is  a  matter  of  concern — 
a  matter  of  deep  concern.  They  go  out  in  their  carri- 
ages— a  sort  of  triumphal  parade — to  determine  upon  the 
destiny  of  a  fellow  man,  professedly  a  friend.  Three,  as 
we  say,  self-constituted — three,  if  you  please,  chosen  by 
the  sheriff — attended  by  counsel,  and  prepared  for  an  ex- 
parte  hearing,  preparatory  to  an  auto-da-fe  ;  and  wonderful 
to  relate,  according  to  the  evidence  of  some  of  the  wit- 
nesses, the  two  Richies,  Dr.  Griscom,  Dr.  Worthington, 
are  all  examined  ;  and  they  then  resort  to  the  form  of  send- 
ing for  the  poor  victim !  This  is  worse  than  the  inquisi- 
tion— it  surpasses  it  in  injustice  and  cruelty  ! — when  you 
have  one- half  of  the  judges  made  up  of  the  prosecutors, 
it's  rather  strange  they  should  be  unwilling  to  face  the 
man  they  came  to  condemn. 

You  may  remember,  yesterday  I  stated  to  you,  that  his 
honor  was  perfectly  right,  in  saying  that  "  the  inquisition 
was  dead  and  gone."  And  you  may  remember  also,  I 
suggested,  that  it  was  dead  and  gone  so  far  as  it  was  cal- 
culated to  supply  aid  to  the  defence — but  it  is  living  and 
operative  against  these  defendants.  "Well,  they  have  all 
been  examined,  as  I  stated — Edward  Richie,  Samuel 
Richie,  Dr.  Griscom,  and  Dr.  Worthiugton — and  then 
Morgan  Hinchman  was  sent  for. 

In  broken-hearted  obedience  he  enters.  Now  what 
does  he  do  ?  He  asks  for  counsel.  Is  it  conceded  to  him  ? 
No!  He  is  away  from  hundreds  and  thousands  of  those 
who  knew  him — he  is  in  a  comparatively  strange  county, 
surrounded  by  his  spoilers — by  those  very  men  who  had 
arrested  him,  and  they  acting  as  witnesses.  What  he 
said,  no  man  can  know !  One  of  my  learned  friends,  Mr. 
Price — and  it  is  remarkable — has  given  in  evidence  what 
took  place  when  they  got  the  account  of  his  property — 
he  got  it  from  Morgan,  when  Morgan  comes  out  1  He 


330  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

talks  of  his  property,  and  they  make  that  evidence  of  his 
insanity — at  the  same  time  that  they  incorporate  his 
statement,  as  evidence,'  in  their  report! — [There  is  no  get- 
ting clear  of  these  people,  who  involve  in  the  proof  of 
insanity,  exhibitions  of  great  absurdity.] — It  is  perfectly 
obvious  that  Morgan  Hinchman  was  apprised  that  they 
inquired  after  his  property,  and  he  could  not  do  less  than 
speak  of  his  property.  He  speaks  of  it  as  it  is — they  act 
upon  his  information,  which  is  true,  and  then  urge  the 
information  against  him,  as  evidence  of  madness.  If  he 
were  mad  in  giving  it,  they  were  mad  in  taking  it.  ' 

He  says,  "  what  is  this  about  ?"  Why !  says  Eli  K. 
Price,  "  a  number  of  the  friends  have  come  to  inquire" — 
(not  to  hold  an  inquest)  "  as  to  thy  health."  There  is  not 
a  man  that  has  the  hardihood  to  tell  him,  candidly,  what 
they  are  assembled  for — 'Surrounded  as  they  are  with  keep- 
ers. At  last  he  says,  "  I  think  it  seems  to  be  an  inquisi- 
tion of  lunacy" — he  understands  it,  taken  suddenly  as  he 
was — "and  I  would  like  to  have  counsel," — "but  ain't  I 
thy  friend  ?"  "  Certainly  ;  but  you  are  the  counsel  of  the 
opposite  party,  and  I  cannot  put  friendship  in  opposition 
to  professional  interest,  I  want  my  own  counsel."  "  Art 
thou  not  satisfied  with  me  ?"  "  Yes,  I  have  been,  except 
in  one  instance,  and  that  was  in  a  case  in  which  thee  com- 
promised a  debt,  instead  of  getting  the  whole  debt."  "What 
more  can  you  want  ?  wherever  you  touch  him  he  is  sane. 
They  can't  answer  him,  so  they  turn  him  out  of  the  room — 
the  best  mode  of  getting  out  of  a  bad  argument.  They 
disgrace  even  the  inquisition.  Look  well  to  it — they  pass 
judgment.  Look  at  that  record — look  at  the  words: 
"  Moro-an  Hinchman  is  a  lunatic,  and  has,  been  a  lunatic 

o 

for last  past."     Mr.  Price  tells  you  it  was  drawn 

up  in  this  city.  I  only  revert  to  it  to  show  the  precon- 
ceived intention.  He  was  declared  a  lunatic  in  Mr.  Price's 
office.  What  is  judgment,  after  execution  ?  What,  to 
kill  a  man  first,  and  then  try  him  afterwards !  I  don't 
wish  to  pause  upon  this ;  but  I  ask  you  to  turn  your  at- 


HINCHMAN  CASE.  331 

teution  to  it,  and  to  remember  that  you  and  yours,  hold 
your  liberty,  your  life,  your  sacred  reputation — more 
valuable  than  both — by  the  tenure  of  a  spider's  web,  if 
this  doctrine  is  to  be  tolerated  or  indulged.  You  will 
have  no  protection ;  the  charter  of  your  rights  is  an  empty 
boast,  and  in  the  hour  of  trial  your  imaginary  security 
vanishes. 

After  this, — they  pass  back  to  the  farm  ;  sell  out  his 
property ;  account  with  the  commissioner ;  and  subsequently 
appoint  Mr.  Lloyd  Mifflin  committee  of  his  person  and 
estate :  they  dispose  of  his  property,  and  rend  and  deraci- 
nate him! — pay  counsel  fees  out  of  his  own  estate — a 
matter  totally  unnecessary — and  having  conveyed  his 
person  to  captivity,  they  sell  out  his  last  hopes. 

Well,  there  he  slumbers;  no,  not  slumbers — decays  in 
the  asylum  ;  nobody  interposes ;  nobody  knows  of  his  con- 
dition. His  uncle  knows  nothing  about  it — his  uncle, 
who  had  been  seven  years  in  the  Legislature,  and  was 
well  known  to  Mrs.  Hinchman  and  others  of  the  party. 
And  Samuel  Fisher,  and  Samuel  Webb  and  wife — Samuel 
Webb,  with  whom  he  served  his  apprenticeship — nobody, 
relative  or  friend — none  of  his  neighbors — no  human 
being — is  called,  or  allowed,  or  noticed,  to  interpose  in  his 
behalf;  sacrificed  as  he  was  in  the  morning  of  his  days, 
and  doomed  to  eternal  shame.  Even  Charles  Shoemaker 
was  not  informed.  It  however  happens  that  Mr.  Hinch- 
man is  apprised  of  his  nephew  being  in  the  asylum  at 
Frankford.  Then,  with  all  the  promptitude  of  a  man  of 
business,  he  goes  himself  to  the  asylum,  and  inquires  in. 
relation  to  the  matter ;  and  in  the  course  of  his  conversa- 
tion with  the  defendants,  ascertains  that  it  is  the  result 
of  a  mere  contrivance.  He  subsequently  gives  the  deiend- 
ants  to  understand  that  this  cannot  be  continued — that 
he  will  try  the  potential  efiect  of  the  habeas  corpus.  Now 
it  is  their  turn  to  be  taught  something  like  reason ;  they 
seemed  to  consider  it  previously  a  mere  matter  of  despot- 


332  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWN. 

ism.  Look  to  this ;  take  notice  here,  for  I  cannot  dwell 
upon  it ;  my  allotment  of  time  will  not  permit  it. 

Well,  when  the  property  is  sold,  what  then  ?  Thomas 
Wistar  is  at  the  place — he  was  there  only  for  the  sale — 
when  Miss  Shoemaker  came,  they  carried  away  a  part  of 
the  furniture,  and  distributed  this  poor  man's  garments, 
and  they  leave  nothing  to  be  found.  They  make  a  sale 
upon  his  farm — take  an  inventory,  and  do  everything,  af- 
fectedly with  form — pay  all  expenses  for  what  the}*  have 
done,  or  what  was  done  for  them,  out  of  the  estate.  But 
what  more  ?  Morgan  Hinchman  subsequently  escapes 
from  the  asylum,  and  applies  to  the  court  for  the  purpose 
of  having  the  original  commission  against  him  rescinded, 
and  the  whole  proceeding  quashed.  Was  not  he  sane 
then?  They  say  they  had  cured  him?  What  do  they 
do?  They  thrust  Lloyd  Mifflin  into  the  forefront  of  the 
battle ;  and  in  pursuance  of  their  design  to  have  the  con- 
trol of  his  property,  they  attempt  resisting  the  application 
of  a  sane  man  to  rescind  a  commission  of  lunacy.  You 
ask  for  motive!  Can  it  be  stronger?  [Favor  me  with 
the  testimony  of  Mr.  Benjamin  Hinchman.] 

It  was  also  argued  by  Richie,  that  Morgan  having 
been  in  the  asylum  as  a  lunatic,  he  could  do  nothing  with 
his  property ;  and  he  had  better  make  a  deed  of  trust,  or 
leave  it  in  the  hands  of  Lloyd  Mifflin,  the  present  com- 
mittee. Mr.  Hinchman  said,  "  Why,  if  he  is  a  sane  man, 
I  don't,  see  why  he  should  not  have  his  property ;  if  in- 
sane, what  is  your  deed  of  trust  good  for  ?"  Well,  says 
Richie,  either  let  him  make  a  deed  of  trust,  or  let  it  re- 
main in  the  hands  of  his  committee,  Lloyd  Mifflin.  (Mr. 
Benjamin  Hinchman's  testimony  was  read.) 

I  connect  that  matter  with  Dr.  Worthington's  remark 
in  relation  to  his  property.  I  connect  it  with  the  fact  of 
Wistar  being  Mifflin's  security.  I  connect  it  with  Mr. 
Garrett's  declaration,  and  I  show  that  the  object  was  to 
keep  the  property  from  Morgan.  What  is  plainer,  when 
Edward  Richie  distinctly  states,  "  if  you  do  that,  you 


HINCHMAN   CASE.  333 

may  come  out,  and  be  a  sane  man."  It  is  as  plain  as  it 
can  be.  They  follow  that  up  until  he  regains  his  liberty 
from  the  asylum  ;  and  even  afterwards,  they  still  hold 
on  to  his  property,  and  take  his  money  to  pay  counsel, 
to  keep  him  out  of  it.  Can  you  look  upon  these  things 
and  misunderstand  them  ? 

Mr.  Richie  paid  all  the  expenses,  board,  counsel  and 
all,  out  of  the  plaintiff's  own  money  ;  but  Mr.  Duboissays, 
apart  from  the  money  he  received  from  Mr.  Mifflin,  or 
Mr.  Richie,  he  received  a  fee  from  Mr.  Wistar  in  the 
whole  matter.  Then  comes  Mr.  Lloyd  Mifflin,  and  tells 
the  uncle  that  he  (the  plaintiff)  had  better  not  attempt 
reclaiming  his  property,  but  leave  it  with  him ;  because 
they  would  either  prove  him  insane,  or  so  blacken  his 
character  that  he  could  not  walk  the  streets.  Can  they 
account  for  that  ?  Does  it  not  indicate  the  nature  of  the 
whole  transaction  ?  Does  it  not  unfold  the  motive  much 
more  clearly  than  I  could  ?  It  is  plain  and  obvious,  and 
cannot  be  denied,  or  misunderstoood. 

I  leave  you,  gentlemen,  to  do  the  rest  of  this  work. 
Take  the  notes — Think  of  them.  Judge  of  men's  thoughts 
by  their  actions,  the  only  earthly  test ;  and  tell  me  whether 
a  doubt  can  remain  upon  your  minds.  Take  what  they 
themselves  have  said;  take  what  they  have  done.  They 
were  all  influenced  by  the  same  motive  and  same  spirit, 
from  first  to  last.  Tell  me,  if  you  can,  when  was  it  that 
the  occurrences  of  life  involved  a  more  unnatural  con- 
federacy, or  produced  worse  consequences  ?  Don't  mis- 
take this  case.  It  is  not  merely  the  case  of  Morgan 
Hinchman  ;  you  may  blot  his  unit  out  of  the  sum  of 
life  ;  but  do  not  stab  society  !  Do  not  immolate  the  laws 
under  which  you  live,  which  protect  you,  by  which  you 
are  protected,  and  to  which  you  are  to  turn  for  security. 
Look  well  to  that.  You  are  the  guardians  of  it.  Don't 
suppose,  because  time  is  not  allotted  to  discuss  it,  that 
every  portion  of  this  case  is  not  attributed  to  the  same 
design.  You  shall  discuss  it  for  me.  It  is  a  work  of 


334  FORENSIC    SPEECHES   OP   DAVID    PAUL    BROWN. 

justice.     It  is  a  work  of  mercy,  too,  and  upon  its  accom- 
plishment depend  the  interests  of  the  land. 

There  are  a  few  isolated  remarks  of  the  defendant's 
counsel  (which,  in  my  rapid  flight,  have  not  been  dis- 
tinctly noticed),  that  before  I  conclude,  demand  a  mo- 
ment's attention.  I  hasten  to  the  period  when  our  joint 
labors  are  to  be  terminated  ;  and  to  be  crowned,  I  hope, 
by  the  consciousness  and  consolation,  of  having  faithfully 
discharged  our  duty. 

The  learned  gentleman  says,  we  must  show  the  defend- 
ants knew  him  (the  plaintiff),  to  be  perfectly  sane  at  the 
time  of  the  capture.  Not  so.  That  refers  as  much  to 
the  condition  of  their  minds  as  to  his.  The  defendants 
must  show  that  they  at  least  had  satisfactory  evidence,  or 
knowledge,  of  his  insanity.  That  is  the  only  mitigation 
of  their  offence.  They  know  upon  what  grounds  they 
acted — they  can  show  what  were  their  inducements  ;  and 
if  they  show  unreasonable,  or  inadequate  inducements, 
wo  betide  their  defence. 

Again,  he  says  :  "  that  if  there  was  reasonable  ground 
to  suppose  that  the  plaintiff  required  medical  treatment, 
none  of  the  defendants  can  be  guilty."  He  forgets  that 
the  illegality  of  manner  in  the  arrest,  as  well  as  the  arrest 
itself,  may  be  the  subject  of  conviction  for  conspiracy — 
and  he  further  forgets  that  they  have  not  shown — consis- 
tently with  a  fair  view  of  the  evidence — that  the  defend- 
ant required  such  medical  treatment  as  they  have  thought 
proper  to  apply. 

It  is  said  they  had  the  opinion  of  a  reputable  physician : 
— the  report  of  Friends :  the  finding  of  the  inquest :  the 
consent  of  Warder  and  Biddle.  Why,  some  of  these  are 
the  grounds  of  complaint ;  and  others  were  the  mere  mea- 
sures resorted  to,  ex  post  facto,  for  the  purpose  of  giving  a 
semblance  of  justification  for  the  original  outrage.  But 
we  have  included  Dr.  Evans  and  Anna  Hinchman,  and 
Benjamin  Warder.  They  were  properly  included.  Ap- 
parently at  least,  they  were  parties.  Suppose  we  had  sued 


HINCHMAN   CASE-  335 

one,  then  we  should  have  been  told,  according  to  their 
doctrine,  that  a  conspiracy  required  more.  Suppose  only 
two — then  we  should  be  told,  it  is  a  great  hardship, — that 
others  were  as  guilty  as  they.  Why  didn't  we  include 
"White  ?  Because  it  was  ascertained  that  he  was  imposed 
upon — did  nothing  but  make  the  appointment — and  ob- 
viously disapproved  of  that;  and  was  necessary  as  a  wit- 
ness in  order  to  explain  the  treachery  resorted  to. 

But  we  give  Morgan  Hinchman's  letter  and  statements 
in  evidence ! — "  only  in  rebuttal"  Which  was  perfectly 
right.  They  attempt  proving  him  insane  by  his  letters. 
He  burnt  none ;  but  exhibits  all  in  his  possession  for 
your  candid  examination. 

I  set  aside  the  settlement  in  1840,  or  consultation  with 
Judge  Stroud.  What  has  that  to  do  with  the  issue  ? 
You  are  not  to  settle  mere  questions  of  property — indi- 
vidual or  domestic  controversies  or  difficulties.  The  appli- 
cation to  my  distinguished  and  excellent  friend,  Judge 
Stroud,  certainly  implies  no  want  of  sanity ;  nor  was  the 
object  of  that  application  incompatible  with  sound  reason, 
or  the  exigency  of  the  occasion. 

I  have  now  considered  the  more  prominent  arguments 
of  my  learned  friend.  I  have  vindicated,  as  far  as  neces- 
sary, the  views  of  my  respected  colleagues.  I  have  dis- 
cussed the  doctrine  of  insanity — as  relates  to  the  mind,  or 
as  connected  with  the  diseases  of  the  body — and  I  have 
endeavored  to  show  you  that  in  reference  to  neither,  had 
the  defendants  any  sufficient  ground  for  the  course  they 
have  adopted. 

In  addition  to  this  I  have  shown  that  we  are  not  called 
upon  to  prove  the  existence  of  malice,  or  the  want  of 
probable  cause,  in  a  case  of  this  character  ;  that  if  we  were, 
they  are  both  fairly  to  be  inferred  from  the  nature  of  the 
aggression  ;  and  that  the  absence  of  the  former  and  the 
existence  of  the  latter,  must  be  subjects  of  satisfactory 
proof,  by  the  defendants  themselves. 

I  have  further  briefly  glanced  at  the  defendant's  testi- 


336  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

mony,  in  order  to  prove  its  inadequacy  to  such  proof, 
when  justly  examined.  And  I  have  now  to  say,  in  con- 
clusion, as  I  have  said  before,  that  these  defendants  can- 
not escape,  by  showing  that  there  were  others  concerned, 
as  guilty  as  themselves,  though  not  embraced  in  this  suit. 
That  they  cannot  escape  by  their  character — by  the  im- 
portance of  the  lunatic  asylum — by  the  prospective  liabili- 
ties which  it  may  incur — by  the  rumors  in  regard  to  the 
plaintiff,  which  may  have  either  been  set  afoot  by  them, 
or  otherwise  originated — by  the  gossip  of  old  maids,  or 
the  phantasies  of  married  women — by  the  report  of  Dr. 
Kite,  or  the  endorsement  of  Dr.  Worthington  or  Dr.  Gris- 
com — by  a  commission  irregularly  issued,  or  an  inquisi- 
tion illegally  executed — by  a  secret  conclave  at  the  farm 
of  Mrs.  Eliza  Hinchman,  nor  by  skulking  behind  the 
mother  and  wife  for  protection.  J^one  of  these  resorts 
will  afford  them  any  aid  ;  and  all  that  remains,  therefore, 
to  be  determined,  is  the  amount  of  the  damages — and 
upon  that,  gentlemen  of  the  jury,  it  is  your  peculiar  and 
exclusive  province  to  decide. 

But  a  few  words  on  the  subject  of  damages,  and  I  have 
done.  You  shall  adjust  the  amount.  I  take  leave  to  say, 
sir,  that  after  having  examined  the  account,  you  will  find 
that  when  Morgan  Hinchmaji  married  Miss  Margaretta 
Shoemaker,  his  fortune  was  equal  to  hers  in  every  respect. 
They  make  it  less,  because  they  take  the  price  of  the 
stocks  at  their  quoted  rates  originally ;  whereas  it  was 
much  less\  and  they  remained  in  the  hands  of  a  trustee, 
and  there  diminished,  until  they  had  been  reduced  one- 
fifth  of  their  original  value.  That  is  called  his  wasting — 
it  had  been  wasted  before  it  came  into  his  hands.  This 
was  a  most  artful  course  to  establish  incompetency. 
What  do  his  neighbors  think  of  Morgan  Hinchman  ? 
Do  they  think  him  an  incompetent  man  ?  They  thought 
he  was  a  f  cute  "  man.  He  drew  up  the  instruments  for  all 
the  neighbors.  He  was  a  gem,  in  that  neighborhood — 
everybody  relied  on  him.  But  because  he  could  not  cal- 


HIXCHMAN   CASE.  337 

culate  farther  than  any  other  man  ;  because  he  could  not 
"  look  into  the  womb  of  time,  and  see  which  seed  would 
grow,  and  which  would  not ;"  he  must  be  considered  a 
madman.  Look  at  that  marble  palace  down  the  street,* 
with  able,  sagacious  and  distinguished  men  at  its  head. 
What  did  they  foresee?  You  all  relied  upon  them.  Yet 
they,  and  you — and  all,  were  deceived !  Why,  vicissitude 
is  the  lot  of  human  transactions — that  which  seems  the 
most  prosperous,  is  often  our  ruin.  Our  penalties  are 
often  our  blessings.  So  does  Providence  dispense  all 
things — "  man  proposes,  and  God  disposes." 

But  what  are  his  damages  ?  Why,  says  my  learned 
friends,  didn't  they  restore  the  property — that  fragment 
that  remained  with  them  after  the  sale — after  all  these 
expenses,  after  all  these  liabilities  were  deducted,  after 
the  breaking  up  of  his  household — didn't  they  restore  the 
remnant — except  the  farm,  which  they  still  hold.  What 
does  that  come  to ;  when  a  man's  farm  and  house  have 
been  stripped  and  desecrated  ?  They  take  the  jewel,  and 
cast  the  empty  casket  at  our  feet,  and  say,  take  that 
and  rejoice.  Is  the  restoration  of  the  dead  body  a  conso- 
lation when  the  life  is  torn  away  ?  Is  the  brand  of  im- 
puted insanity  resting  upon  his  brow,  like  the  mark  of 
Cain,  to  travel  with  him  through  life ;  to  be  compensated 
by  figures  ?  Well,  look  to  that  ?  Is  that  the  mode  in 
which  they  account  ?  I  consider  the  pecuniary  amount 
as  comparatively  nothing.  How  do  they  account  to  you 
for  the  months  of  solitary  imprisonment  ?  How  do  they 
account  to  you  for  the  present  sufferings  of  this  man? 
How  do  they  account  for  the  continued  estrangement 
of  his  wife  ?  How  do  they  account  for  robbing  him  of 
his  children — for  staining  his  character,  making  him  a 
figure  for  the  hand  of  scorn  "  to  point  his  slow  unmoving 
finger  at  ?"  Are  these  nothing  ?  How — for  the  nights  of 
torture,  waking  him  hourly,  though  he  stood  in  want  of 


*  Formerly  the  United  States  Bank. 
22 


FORE^TSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

sleep  ?  How — for  the  restraint  upon  his  liberty,  in  refusing 
communication  with  the  external  world  ?  They  say  he  is 
insane — even  now  I  Take  his  letters,  written  at  the  very 
witching  time — (I  have  not  time  to  read  them) — and 
tell  me  if  the  whole  college  of  physicians  could  write  or 
reason  more  soundly — take  them  all  and  tell  me  what 
they  come  to.  Nay,  take  the  testimony  of  the  defend- 
ants themselves.  They  resemble  men  who  walk  back- 
wards to  destruction ;  and  who  look  upon  the  sun  or  stars, 
to  the  last. 

I  ask  you  to  indemnify  him — to  signify  your  sense  of 
the  wrongs  and  injuries  to  which  he  has  been  wantonly 
subjected — by  the  character  of  your  verdict.     I  ask  you 
only  to  indemnify  him  as  far  as  you  can  ;  because  entire 
indemnity  never  can  be  reached.     A  cureless  wound  has 
been  inflicted ;  for  which  "  there  is  no  balm  in  Gilead  ; 
there  is  no  physician  there," — speaking  in  the  temporal 
application  of  the  phrase.     But  do  what  you  can — the 
law  demands  it  from  you — individual  right  appeals  to 
you  for  it,  and   every  consideration  it  awakens,  in  the 
minds  or  consciences  of  men,  imperiously  lays  claim  to  it. 
But  it  is  not  only  in  regard  to  him  that  you  are  called  to 
give  it :  I  ask  for  it  in  regard  to  the  defendants  them- 
selves.    It  is  not  more  necessary  in  the  dispensations  of 
justice,  may  it  please  your  honor,  that  the  injured  should 
be  indemnified,  than  that  the  offenders  should  be  pun- 
ished.    I  ask  you,  then,  to  teach  them  a  lesson  ;  if  not 
through  their  hearts,  through  the  salutary  medium  of 
the  pocket,  which  is  a  little  lower.     Bo  as  you   would 
wish  to  be  done  by.     All  these  matters  enter  into  the 
consideration  of  this  case.     Give  them  to  understand  that 
a  harmless,  helpless,  inoffensive  individual   may  not  in 
broad  blushing  daylight,  as  I  have  said,  be  arrested— 
either  by  a  military  band  or  by  friends,  more  remorseless 
than  a  military  band — and  taken  to  a  mad-house,  and 
there  incarcerated.     Let  them  understand  that  this  enor- 
mity, continued  for  six  long,  lingering  months,  shall  es- 


HINCHMAX   CASE.  339 

cape,  uncondemned ;  and  you  establish  an  example  in  the 
contemplation  of  which  the  community  shall  be  cor- 
rupted, and  the  whole  world  may  weep  tears  of  blood.  I 
leave  this  matter  to  you :  I  don't  ask  you  to  bring  it 
home  to  yourselves  and  look  at  it  through  the  painful 
medium  of  your  wives,  and  with  reference  to  your  chil- 
dren ;  but  to  regard  it  with  respect  to  blighted  prospects 
in  times  to  come,  and  blighted  fortunes  in  times  past.  I 
ask  you  to  look  at  it  as  calm  dispassionate  men  will  do,  as 
adjust  men  must  do, — determined  that  "JUSTICE  SHALL 

BE  DONE  THOUGH  THE  HEAVENS  SHOULD  FALL." 


SMITH'S  CASE. 


COMMONWEALTH  OF  PENNSYLVANIA  v.  THOMAS  WASHING- 
TON SMITH. 

In  the  Court  of  Oyer  and  Terminer,  held  at  Philadelphia. 
January  Sessions,  1858. 

CHARGED  WITH  MURDER. 


INTRODUCTION. 

The  history  of  this  case  is  one  of  the  most  painfully  sad 
records  of  human  suffering  and  human  wrong — culmi- 
nating in  a  terrible  human  sacrifice — that  the  annals  of 
any  time  can  furnish.  The  material  facts,  however,  are 
so  clearly  set  forth  in  the  following  pages,  that  it  is  only 
necessary  here  to  state,  that  after  a  trial  that  lasted  two 
weeks,  the  defendant  was  "  acquitted." 

For  the  Commonwealth. 

District  Attorneys  —  J.  P.  LOUGHEAD  and  WM.  B. 
MANN. 

for  the  Defendant. 
Messrs.  M.  RUSSELL  THAYER  and  DAVID  PAUL  BROWN. 


(340) 


SMITH'S  CASE.  841 


SPEECH  IN  SMITH'S  CASE. 


WITH  DEFERENCE  TO  YOUR  HONORS, 

GENTLEMEN  OF  THE  JURY: 

After  a  painful,  deeply  interesting,  and  unusually  pro- 
tracted course  of  investigation,  you  and  I  are  about  to 
separate.  Your  time  has  been  well  employed  ;  and  that 
patience  and  attention  which  you  have  exhibited  from 
the  commencement  of  this  cause  have  been  well  bestowed. 
Time  and  toil,  properly  considered,  are  of  little  value 
when  they  are  compared  with  the  importance  of  eternity. 
Time  is  nothing — -justice  is  all. 

Justice  is  much  talked  of,  but  not  always  well  under- 
stood. Her  temperament  has  been  resembled  to  that  of 
the  lamb  rather  than  that  of  the  lion — to  the  dove  rather 
than  the  vulture.  In  her  human  administration — to  say 
nothing  of  her  celestial  properties — she  is  dignified,  calm, 
mild,  moderate,  and  even  merciful.  She  bears  a  sword, 
it  is  true,  which  indicates  that  offenders  against  her  holy 
edicts  must  be  punished ;  but  even  when  she  inflicts  the 
blow,  she  does  it  reluctantly,  and  for  salutary,  and  not  for 
vindictive  purposes.  She  mingles  her  sighs  with  those  of 
her  victim,  and  returns  him  groan  for  groan.  While 
bearing  the  sword  in  one  hand,  she  holds  the  scales  in  the 
other,  wherein  to  weigh  the  actions,  the  vices,  the  vir- 
tues, and  the  motives  of  men.  When  those  scales  are 
equiponderant,  she  drops  a  tear  into  that  of  the  accused, 
and  the  commonwealth's  kicks  the  beam. 

Some  thirty-five  years  ago — perhaps  before  your  honors 
were  born — I  had  the  distinction,  being  then  a  very 
young  man,  to  discuss  an  important  case  of  homicide  (in- 


342  FORENSIC    SPEECHES   OP   DAVID   PAUL   BROWN. 

deed  every  case  of  homicide  is  important,  whether  it  in- 
volve the  fate  of  the  low  or  lofty),  in  this  very  court. 
At  that  time,  I  observed  an  emblematic  figure  or  effigy 
of  justice,  placed  immediately  over  the  judgment  seat. 
In  the  left  hand  she  bore  uneven  scales  ;  and  in  the  right, 
an  equivocal  sort  of  implement,  which  appeared  to  resem- 
ble a  trowel,  or  a  butcher's  cleaver!  Instead  of  wearing 
her  white  and  immaculate  robes,  it  struck  me  as  most  re- 
markable, particularly  in  a  court  of  criminal  jurisprudence, 
that  she  should  be  covered  from  head  to  foot  with  GILT 
(guUf).  That  figure,  I  find,  still  remains ;  but  in  looking 
at  her  now,  I  perceive  the  scales  are  gone,  the  cleaver  has 
also  been  removed — and  if  I  were  suspicious,  bearing  in 
mind  the  sanguinary  doctrines  of  the  commonwealth,  I 
might  readily  suppose  that  it  had  been  transferred,  to- 
gether with  the  notes  of  Mr.  Bulkley,  to  the  tender  mer- 
cies of  the  prosecuting  counsel. 

In  a  case  like  this,  allow  me  to  observe,  there  has  rarely 
been  exhibited  such  undue  severity  against  a  defendant 
engaged  in  a  struggle  for  his  life,  as  has  marked  the 
course  of  the  prosecution.  Nevertheless,  we  guard  the 
citadel  of  human  life,  and  we  will  maintain  our -.posts 
until  the  last,  even  though  our  own  lives  should  be  the 
forfeit. 

Permit  me  further  to  say,  that  if  I  had  changed  places 
with  the  officers  of  the  State,  I  would  at  once,  with  my 
views  of  this  cause,  after  hearing  the  testimony — as  I 
should  answer  to  the  JUDGE  of  judges — have  promptly 
abandoned  the  prosecution,  and  that  too,  if  urged  on  by 
twenty  commonwealths.  No  commonwealth  should  stand 
between  my  conscience  and  myself:  no  commonwealth 
can  stand  between  my  conscience  and  my  God. 

In  the  course  of  this  trial  too,  the  State,  not  depending 
alone  upon  her  own  strength,  or  that  of  her  official  func- 
tionaries, has  been  surrounded  by  a  trio  of  herculean  rep- 
resentatives from  Tamaqua ;  so  that  at  one  time  we  were 
almost  appalled  at  the  anticipation  (knowing  our  friend's 


SMITH'S  CASE.  343 

fondness  for  the  antiquities  of  the  law)  that  he  was  about 
to  revive  the  ancient  and  obsolete  mode  of  trial,  called 
"the  wager  of  battle:"  in  such  a  physical  rencontre  the 
defendant  would  have  had  as  much  to  fear,  as  he  now 
has  to  hope,  in  his  legal  and  moral  defence. 

The  public  prosecutors,  I  repeat  it,  while  they  have 
conducted  this  case  with  great  ability,  and  I  am  com- 
pelled to  add,  with  unexampled  zeal,  have,  it  is  true,  pro- 
fessed some  sympathy  for  the  defendant,  and  spoken  of 
their  own  impartiality. — Professions  are  nothing  to  me,  I 
look  to  the  action  of  men. 

The  counsel  may  have  bedecked  their  brows  with 
laurels ;  but  it  is  the  business  of  my  colleague  and  myself, 
with  your  aid,  gentlemen  of  the  jury,  to  prevent  these 
laurels  from  being  imbued  or  nurtured  by  the  blood  of  an 
innocent  man.  The  honors  that  spring  from  cruelty  or 
severity,  are  ever  questionable  in  their  birth,  and  at  the 
best  but  of  a  precarious  and  short  duration.  But  one 
thing  at  least  is  true,  their  remembrance  shall  be  perpetu- 
ated in  the  groans  and  agonies  of  those  whom  they  have 
oppressed.  Power  is  desirable,  it  is  laudable,  when  used 
for  a  laudable  purpose ;  but  it  is  most  pernicious,  not  to 
say  culpable,  when  applied  to  unjust  ends. 

"It  is  excellent  to  have  a  giant's  strength, 
But  it  is  tyrannous  to  use  it  like  a  giant." 

"We  now  take  leave,  for  a  time,  of  the  commonwealth 
and  its  officers,  and  turn  to  a  more  agreeable  subject. 
My  learned  friend  and  colleague,  in  the  discharge  of  his 
duty,  has  reflected  great  light  upon  this  cause  and  great 
honor  upon  himself.  By  his  industry  and  talents  he  has 
removed  all  impediments  (there  were  no  obstacles)  which 
had  been  temporarily  thrown  in  our  'way  ;  and  almost  all 
that  remains  to  me,  is  to  deepen  the  impressions  he  has 
made,  by  treading  in  his  footsteps.  It  is  .certainly  no  dif- 
ficult task,  to  pursue  any  path  in  which  he  has  been  the 
pioneer. 


344  FORENSIC   SPEECHES   OF   DAVID   PAUL   BKOWN. 

A  single  other  preliminary  word  to  you,  gentlemen  of 
the  jury :  However  this  case  may  eventuate,  you  will 
bear  with  you,  in  withdrawing  from  your  present  public 
functions,  not  merely  the  thanks  of  this  honorable 
court  for  your  patience  and  attention  during  this  impor- 
tant and  vital  trial,  and  the  thanks  of  the  humble  advo- 
cate who  now  appeals  to  you ;  but  you  will  bear  with 
you,  what  is  beyond  all  praise  and  all  price,  the  grate- 
ful acknowledgments  of  lacerated,  bleeding  and  broken 
hearts.  You  will  bear  with  you,  also,  what  the  world's 
applause  cannot  give,  nor  its  censures  take  away — the 
consolatory  consciousness  of  having  faithfully  and  fear- 
lessly performed  your  duty. 

For  myself,  allow  me  to  say,  if  I  should  close  a  forensic 
career  of  more  than  forty  years,  by  the  successful  vindi- 
cation of  the  prisoner  at  the  bar ;  if  not  the  crowning 
glory — better  than  the  crowning  glory — it  would  be  the 
crowning  happiness  of  an  arduous,  laborious,  and  diver- 
sified professional  life.  But  the  mind  of  man  is  so  mys- 
teriously constituted,  that  in  moments  and  matters  of  the 
deepest  interest  and  anxiety,  it  often  becomes  impaired  in 
its  exercise  and  efforts,  in  the  very  consciousness  of  its 
responsibility ;  and  in  its  desire  to  do  most,  it  accomplishes 
the  least.  In  the  language  of  the  unhappy  prisoner,  our 
very  "  hopes  are  hopeless" — our  very  wishes  give  us  not 
our  wish. 

When  I  look  at  the  unfortunate  defendant,  blasted,  as 
it  were,  in  the  very  prime  of  his  life,  the  spring-tide  of  his 
existence — when  I  behold  his  pale,  fragile,  affectionate, 
and  self-devoted  sister  clinging  to  him,  as  the  tendril 
clings  to  its  support,  beautifying  it  with  its  verdure,  and 
refreshing  it  with  its  shade — when  I  cast  a  retrospective 
view  over  all  that  he  has  suffered,  and  all  the  sufferings 
in  which  she  has  shared ;  and  when  I  bear  in  mind  that 
all  this  load  of  grief  appeals  to  me,  at  least  in  part,  for 
alleviation  ;  you  must  pardon  me  for  saying,  that  I  almost 
shrink  from  the  appeal.  "  I  tremble,  and  confess  myself 


SHITH'S  CASE.  345 

a  coward" — not,  heaven  knows,  from  a  want  of  sym- 
pathy—not from  a  want  of  will — but  from  the  fear  that 
the  warmth  of  that  sympathy,  and  the  earnestness  of  that 
will,  may  defeat  the  exercise  of  those  abilities  which  are 
so  urgently  and  imperatively  demanded. 
y(  Your  condition,  however,  gentlemen  of  the  jury,  pain- 
ful as  it  is,  is  far  more  enviable  than  mine.  To  you  is 
delegated  a  portion  of  the  attribute  of  Omnipotence: 
you  are  his  Fates :  you  hold  his  life  in  your  hands  :  you 
control  his  temporal,  if  not  his  eternal  destinies :  you  can 
avoid  what  I  can  only  deprecate — his  condemnation : 
you  can  secure  what  I  can  only  solicit — his  acquittal. 
Upon  you,  therefore,  the  hopes  of  this  unhappy  man  must 
mainly  rest,  and  to  you  we  solemnly  and  confidently  com- 
mit the  result  of  this  deeply  interesting  and  most  mo- 
mentous cause;  at  the  same  time  earnestly  beseeching 
you  ever  to  bear  in  mind,  that — N£ 

"  Human  power  doth  then  ?eem  likest  God's, 
When  mercy  seasons  justice." 

.N~ow,  gentlemen  of  the  jury,  to  come  to  the  case: — 
This  indictment  charges  Thomas  Washington  Smith  with 
the  murder  of  Richard  Carter,  on  the  4th  day  of  Novem- 
ber, 1857.  The  ordinary  defences  of  murder,  generally 
consist  in  the  denial  of  the  act  of  homicide  ;  or  in  the 
denial  of  the  death,  as  the  consequence  of  the  act ;  or  the 
mitigation  of  the  alleged  degree  of  felonious  homicide, 
arising  from  the  cause  that  produced  it ;  ,or  the  allega- 
tion of  mental  irresponsibility,  in  excuse  of  the  crime 
charged,  whatever  may  have  been  the  imputed  offence. 

Such,  I  say,  are  the  ordinary  defences.  Jn  this  case, 
however,  we  do  not  deny  the  act,  nor  do  we  deny  that  it 
produced  death.  Both  of  these  are  fatal  and  unques- 
tionable truths.  Except,  therefore,  for  the  sake  of  ad- 
herence to  formal  and  technical  propriety,  no  proofs  thus 
far,  would  have  been  required  by  us  from  the  common- 
wealth. Our  defence  rests  on  widely  different  grounds. 


346  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWX. 

If  we  were  astute,  and  it  were  necessary,  we  might  show 
you  that,  if  the  defendant  were  as  sane  as  Solomon  (I 
don't  mean  as  wise),  this  could  be  no  more,  according  to 
the  evidence,  than  the  very  least  degree,  of  the  least  and 
last  order,  of  felonious  homicide.  I  shall  just  intimate  a 
thought  on  that  subject,  rather  to  show  that  we  might 
rely  upon  it,  if  necessary;  though  at  the  same  time  disa- 
vowing all  such  intention.  I  shall  skim  over,  rather  than 
argue  it,  and  then  come  to  the  main  ground  of  our  reli- 
ance. 

There  are  three  kinds  of  felonious  homicide  in  Penn- 
sylvania : — 

Murder  in  the  first  degree. 

Murder  in  the  second  degree  ;  and 

Manslaughter. 

Prior  to  the  year  1795,  there  were  but  two  grades  of 
felonious  homicide — as  the  English  law  then  existed  in 
all  its  rigor,  in  this  State.  At  that  time,  William  Brad- 
ford immortalized  his  name,  by  the  amelioration  of  this 
portion  of  the  criminal  code,  whereby  the  second  degree 
of  murder  was  introduced  ;  and  in  the  introduction  of 
which  the  Legislature  provided  :  "That  all  murder  perpe- 
trated in  the  commission,  or  attempt  to  commit  robbery, 
rape,  burglary,  or  arson,  or  by  poison,  or  lying  in  wait,  or 
an^v  wilful,  deliberate,  and  premeditated  killing,  shall  be 
deemed  murder  in  the  first  degree  ;  and  all  other  murder 
shall  be  murder  in  the  second  degree. 

Remember,  it  is  all  other  murder,  not  all  other  killing. 
If  it  were  all  other  killing,  it  would  render  our  code 
more  sanguinary  than  the  British  code ;  and  elevate  the 
crime  of  manslaughter  into,  murder  of  the  second  degree. 
The  intention  of  this  law  was  clearly  (as  both  murder  in 
the  first,  and  second  degree,  require  malice),  to  discrimi- 
nate between  the  grades  or  species  of  malice  ;  and  to 
regulate  the  offence  accordingly. 

The  terms  "  wilful,  deliberate  and  premeditated/' — 
particularly  when  we  associate  with  them,  as  connected 


SMITH'S  CASE.  347 

with,  and  as  illustrative  of,  their  character,  the  terms 
"  poison  and  lying  in  wait," — can  leave  no  doubt  as  to 
the  truth  of  my  position  ;  and  I  take  leave,  therefore,  to 
say,  that  when  Dougherty  was  convicted  of  murder, 
upon  the  plausible  doctrine  of  Chief  Justice  McKean  ; 
and  also  when  Lieutenant  Smith  was  convicted  by  the 
same  doctrine  of  Judge  Rush — that,  "  as  he  struck  the 
blow,  it  must  therefore  have  been  wilful ;  and  if  it  was 
wilful,  and  he  intended  to  kill,  it  must  have  been  deliber- 
ate ;  and  if  the  deliberation  was  for  a  single  moment,  it 
amounted  to  premeditation  " — so  that  the  act  became 
"  wilful,  deliberate,  and  premeditated  !" — I  take  leave  to 
dissent,  toto  coclo,  from  the  law  and  the  logic  of  those  dis- 
tinguished jurists.  Again :  "  If  the  defendant  has  time 
to  think,  and  did  intend  to  kill,  for  a  moment,  as  well  as 
an  hour  or  a  day,  it  is  a  deliberate,  wilful  and  premedi- 
tated killing,  and  murder  in  the  first  degree,  within  the 
act  of  Assembly." 

Now,  if  it  were  not  for  the  high  authority  of  this  doc- 
trine, I  should  hold  it  to  be  sheerly  absurd,  and  utterly 
opposed  to  the  humane  spirit  of  the  enactment  in  ques- 
tion. First :  What  is  meant  by  a  moment  ?  It  is  an  in- 
definite lapse  of  time.  Horace  speaks  of  "  a  moment  of 
an  hour."  Legal  matters  should  be  definite,  particularly 
when  life  depends  upon  the  construction.  What  might 
be  wilful,  deliberate  and  premeditated  in  one  man,  might 
not  be  so  in  another.  Are  the  workings  of  the  mind  of 
an  excited  man,  and  the  limit  allowed  to  cooling  time,  to 
be  fixed  by  a  learned  judge,  who  is  never  permitted  to 
become  excited— who  is  calm  and  dispassionate  from 
habit  and  necessity?  Is  he  to  determine  when  reason 
resumes  her  throne — when,  with  him,  she  has  never  been 
known  to  lose  it  ?  If  this  be  the  case,  why  then,  a  man 
who,  at  one  moment  has  his  nose  pulled,  and  the  next 
moment  kills  his  assailant  (which  can  amount  to  no  more 
than  manslaughter),  upon  this  dicta  of  the  judges  that — 
"  as  he  had  the  will  to  do  it,  he  had  the  thought  to 


348  FORENSIC   SPEECHES   OF   DAVID    PAUL    BROWN. 

prompt  the  will — and  if  he  could  think  one  moment  be- 
fore the  blow,  he  premeditated  the  blow" — every  man- 
slaughter would  be  at  least,  murder  in  the  second  degree. 
In  short,  there  could  be  no  manslaughter ;  unless  you 
take  from  the  alleged  offender,  at  the  same  time,  the  will 
to  strike  and  the  ability  to  think — that  is,  unman  him 
entirely,  and  deprive  him  of  the  powers  of  a  sentient 
being — of  which,  let  me  say,  if  he  were  thus  utterly  de- 
prived, he  could  commit  no  oft'ence  at  all,  as  he  would  no 
longer  be  a  responsible  being. 

My  notion  is,  then,  that  in  order  to  murder,  there  must 
be  such  manifestations  as  clearly  imply  a  "  heart  regard- 
less of  social  duty,  and  fatally  bent  upon  mischief."  I 
do  not  mean  to  say,  that  the  plan  of  destruction  shall 
exist  for  a  day,  or  even  for  an  hour  ;  but  I  do  mean  to 
say,  that  it  is  incumbent  upon  the  commonwealth  clearly 
to  show  its  pre-existence,  in  order  to  establish  what  the 
law  calls  malice.  Poison  requires  the  preparation  or  con. 
coction,  and  administration  of  the  destructive  drug  ;  it  is 
for  the  most  part  prepared  in  the  absence  of  the  intended 
victim  ;  it  is  an  evidence  of  will,  deliberation,  and  premedi- 
tation, that  cannot  be  disputed.  Lying  in  wo.it,  belongs 
to  the  same  category  of  offences  ;  the  very  term  wait,  im- 
plies time  for  will,  deliberation,  and  premeditation  ;  and 
as  "all  other  kinds  of  wilful,  deliberate,  and  premedi- 
tated murder,"  clearly  refer  to  the  motive  and  malice  of 
the  cases  adverted  to;  it  of  course  follows  that  a  sudden 
exigency,  producing  an  instantaneous  excitement  of 
mind,  whether  it  be  in  the  shape  of  a  blow,  a  wrong,  or 
an  insult,  or  whatever  you  please,  is  not  embraced  by 
those  terms  which  designate  murder  in  the  first  degree. 

The  law  of  England  describes  murder  as  the  "  taking  the 
life  of  any  reasonable  creature,  with  malice  aforethought, 
either  express  or  implied"  Our  law  does  not  recognize 
this  doctrine.  Implied  malice  with  us,  is  never  more 
than  murder  in  the  second  degree ;  and  although  express 
malice  amounts  to  murder  in  the  first  degree,  the  Legis- 


SMITH'S  CASE.  349 

lature  has  taken  care  to  define  what  shall  constitute 
express  malice,  by  the  terms  "  wilful,  deliberate  and  pre- 
meditated." 

Now,  may  it  please  your  honors,  do  not  encounter 
me,  by  telling  me  how  you  have  decided  ;  or  what  pre- 
conceived notions  may  have  taken  lodgment  in  your 
minds;  but  comj  to  the  question  with  your  best  reason- 
ing, and  with  all  the  lights  you  can  bring  to  bear  upon 
it ;  and  before  you  break  into  the  "  bloody  house  of  life," 
be  conscientiously  and  well  assured  that  you  do  so  upon 
the  warrant  of  the  law. 

It  matters  not  what  has  been  decided — if  erroneously 
decided  :  you  are  not  the  scapegoats  or  pack-horses  to 
carry  off  all  the  errors  that  may  have  crept  into  the  ad- 
ministration of  justice :  let  those  who  have  committed 
them  answer  for  them.  We  are  engaged  in  the  case  of 
The  Commonwealth  v.  Smith — you  are  the  judges — this 
is  the  jury  in  his  case — I  am  the  counsel — this  is  the  law 
— and  I  ask  your  decision  on  this  law,  derived  directly 
from  the  Legislature,  and  especially  applicable  to  this 
case.  Do  not,  by  imaginary  analogies,  or  supposed  simi- 
larities in  other  cases,  as  decided  by  other  judges,  be 
betrayed  into  errors  upon  the  subject  which  is  now  imme- 
diately before  you.  No  two  cases  exactly  alike — or  to 
which  the  law  equally  related— were  ever  yet  known  ; 
and  therefore  by  confounding  one  case  with  another — the 
past  with  the  present — and  applying  the  same  law 
equally  to  both,  you  may  do  great  and  irremediable 
wrong. 

I  say,  then,  that  if  this  defendant  was  perfectly  him- 
self, it  is  legally  impossible,  even  if  the  provocation  was 
not  the  tithe  of  what  it  is — and  what  I  shall  show  it  to 
have  been — to  convict  him  of  more  than  murder  in  the 
second  degree. 

And  I  will  show  you  with  regard  to  the  exact  state 
of  the  provocation — though  he  was  as  sane  as  any  judge 
or  juryman,  that  I  address — that  the  offence,  at  most  was 


350  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

but  MANSLAUGHTER.  And  further  I  will  show  you,  with 
reference  to  the  state  of  his  mind  at  the  time ;  and 
the  cruel  injuries  and  outrages  he  had  sustained ;  and.  the 
peculiar  sensibilities  of  the  man^  and  his  inherited  infirm- 
ities ;  that  he  is  totally  irresponsible  to  the  law  for  the 
death  of  his  betrayer. 

But  to  resume — having  marshalled  you  the  way  that  I 
am  going — how  is  it  worse  than  manslaughter — apart 
from  the  alleviating  features  suggested  in  my  third  point  ? 

A  man,  returning  to  his  home,  detects  an  adulterer  in 
the  "manner" — he  immediately  rushes  forth  for  a  wea- 
pon and  strikes  him  dead — he  thinks — he  knows  it  is  his 
wife — he  knows  the  betrayer — he  knows  it  is  his  own  house, 
and  his  own  rights  that  are  violated :  he  wills — he  delib- 
erates— he  premeditates.  According  to  the  judicial  no- 
tions referred  to,  he  is  guilty  of  murder  ;  yet  that  has 
never  been  held  to  be  more  than  manslaughter,  even  if  he 
kill  both.  And  if  it  were  a  rape,  and  the  ravisher  were 
slain,  it  is  excusable  homicide — on  the  principle  that  the 
wife  and  the  husband  have  reciprocal  rights  of  defence ; 
and  that  in  defending  her  he  defends  himself. 

"Well,  then,  as  slaying  the  adulterer  in  the  act  of  crime, 
can  be  no  more  than  manslaughter — and  as  it  is  reduced 
to  that  third  grade  of  felonious  homicide,  by  the  excite- 
ment— if  we  show  you  a  state  of  excitement  produced  in 
the  human  mind,  equal  and  greater  than  that  of  a  hus- 
band who  detects  his  wife  with  the  adulterer:  does  it  re- 
quire an  argument  from  me  to  show,  that  the  greater  the 
excitement  the  greater  the  mitigation  of  the  crime  ?  Let 
us,  in  this  part  of  the  case,  suppose  (as  has  been  said) 
Mr.  Smith  to  be  as  sane  as  any  man  I  address,  and  as 
composed  as  any  man  could  be  who  had  been  subjected 
to  the  same  injury;  and  I  will  show,  that  time,  which 
heals  slight  wounds,  causes  those  that  are  deeper  and 
more  mortal  in  their  character,  to  gangrene  and  destroy  ; 
in  other  words,  that  excitement  arising  from  some  inju- 
ries is  aggravated  by  every  succeeding  day  and  hour. 


SMITH'S  CASE.  351 

Anger,  is  said  to  be  "a  brief  madness,"  and  it  is  upon 
that  hypothesis  that  the  law  mitigates  homicide  from 
murder  to  manslaughter,  where  the  fatal  blow  is  pro- 
voked by  the  original  assault  or  provocation.  Should  not 
that  excuse  be  at  least  equally  available  when  the  party  slain 
— having  originally  assumed  the  mask  of  a  friend,  and  un- 
der that  disguise  utterly  ruined  the  hapless  defendant — 
induced  him  to  marry  his  offcast  mistress ;  concealed  the 
connection  for  months ;  allowed  it  to  burst  upon  him — 
and  to  burst  upon  a  censorious  world  of  a  sudden — in  the 
midst  of  .  his  hopes — in  the  very  bloom  of  his  affec- 
tions ;  and  thus  consign  him  at  once,  while  surrounded 
with  all  the  charms  of  life,  to  worse  than  annihilation,  to 
remediless  and  fathomless  ruin.  Ruin  to  him — to  his — 
to  every  one  who  clung  to  him,  or  to  whom  he  clung. 

The  man  who  strikes  an  adulterer  dead,  is  partially  ex- 
cused for  the  deed,  by  the  enormity  of  the  offence  thus 
punished.  He  is  not  excused  because  he  is  insane,  but 
because  even  sanity  itself  would  prompt  the  blow.  But 
suppose  the  blow  were  not  inflicted  at  the  moment, — that 
the  unhappy  husband  buried  for  a  time  his  griefs  and 
his  wrongs  in  his  own  bosom,  like  a  pent. up  earthquake 
or  volcano, — brooded  upon  it  in  ceaseless  agony — saw  it 
in  every  human  face — saw  it  in  his  blasted  hopes — 
inhaled  it  in  the  air  he  breathed — felt  it  in  his  "  heart 
of  hearts,"  month  after  month,  and  hour  after  hour, 
until  it  utterly  absorbed  or  enthralled  his  better  nature 
— gaining  strength  with  progress,  and  finally  over- 
powering all  mental  resistance — his  one,  sole,  fearful, 
fatal — inseparable  thought.  Is  that  man  sane — can  he 
be  sane.  "Would  not  the  imagination  of  such  a  picture 
almost  drive  a  sensitive  man  mad.  What  think  you, 
then,  would  be  the  effect  of  this  sad  reality  of  woe  ? 
What  law  would  you  apply  to  it  ? — by  what  law  was  it 
contemplated  ? — What  human  law  punishes  this  manifold 
wrong,  or  redresses  this  unparalleled  injury?  There  is  but 
one  law,  which,  while  it  prompts,  sanctions  the  vengeful 


352  FORENSIC   SPEECHES   OP   DAVID   PAUL    BROWN. 

blow — the  great  universal  and  irrevocable  LAW  OF  NATURE. 
— A  law  which  even  religion  seems  to  recognize,  when 

~  O 

we  are  told  in  Proverbs,  that  "  Jealousy  is  the  rage  of 
a  man,  therefore  he  will  not  spare  in  the  day  of  ven- 
geance." 

This  leads  me  to  consider  the  facts  of  this  case,  as  bear- 
ing upon  the  state  ot  the  defendant's  mind  on  the  4th 
day  of  November,  1857,  when  this  offence  is  alleged  to 
have  been  committed ;  and  as  also,  at  the  same  time,  im- 
parting aid  to  the  defence,  by  reflecting  light  upon  the 
legal  positions  that  have  been  already  assumed. 

It  has  been  truly  said,  gentlemen  of  the  jury,  that 
there  is  nothing  in  the  romance  of  the  drama  that  can 
compare  with  the  sad  realities  of  human  life.  Look,  now, 
at  this  case,  which  is  at  once  an  illustration  and  an  en- 
forcement of  these  doctrines.  Why  the  fates  and  the 
furies  combined,  could  never  weave  a  blacker  or  a  more 
terrific  web  than  that  which  is  here  presented ! — a  horri- 
ble pall,  which  seems  to  shroud  all  the  actors  in  this 
bloody  tragedy !  But  let  me  not  anticipate,  but  turn 
your  attention  to  the  lamentable  story. 

Richard  Carter  arrived  in  this  country,  from  England, 
some  twenty-five  years  ago.  He  took  up  his  residence  in 
the  neighborhood  of  Tamaqua,  where  he  continued  for 
many  years.  The  district  attorney  has  told  you,  that 
by  a  course  of  successful  industry  he  acquired  a  large  for- 
tune ;  that  he  had  many  excellent  qualities,  and  an  ex- 
tensive circle  of  friends.  Let  us  see  how  he  deserved 
these  commendations.  The  fortune  he  had  made,  instead 
of  being  applied  to  virtuous  purposes  was  dedicated  to 
vice — and  to  come  to  this  very  case,  was  the  means  relied 
upon  to  procure  the  prostitution  of  the  daughter  of  his 
friend,  his  partner,  and  I  might  almost  say  his  brother, 
John  McCauley. 

In  the  year  1856,  this  man,  who  had  acquired  his 
wealth  among  us,  applies  to  Mr.  McCauley  for  the  privi- 
lege of  adopting  or  taking  charge  of  his  daughter, — at 


SMITH'S  CASE.  353 

that  time  a  budding  girl,  unpolluted  even  by  the  atmos- 
phere of  a  corrupt  and  corrupting  world.  The  father, 
relying  upon  his  honor,  complies  with  his  request.  Car- 
ter assumes  to  himself,  ostensibly,  the  paternal  duties  in 
relation  to  her ;  and  upon  leaving  her  father,  promises  to 
make  her  a  "  finished  lady ; "  and  so  he  DID — that  promise 
he  kept  literally — she  is  finished  for  all  the  valuable  pur- 
poses of  this  life— finished,  almost,  in  regard  to  the  hopes 
of  future  salvation — such  being  the  influence  which  tem- 
poral ruin  sometimes  produces  upon  our  eternal  hopes. 

He  places  her  at  a  respectable  female  college  in  an  ad- 
joining State.  She  remains  there  some  months.  In  the 
month  of  July  he  sends  his  summons  to  those  in  charge 
of  the  college,  to  permit  her  to  visit  the  city  of  Philadel- 
phia ;  she  accordingly  arrives,  and  he  receives  her  at 
Jones'  Hotel.  There,  this  man — a  professed  father,  having 
adopted  this  child,  and  having  refined  her  sensibilities 
through  instruction,  and  thereby  rendered  the  crime  into 
which  he  betrayed  her  doubly  deplorable, — in  the  night 
time, — at  the  hour  of  midnight, — the  poor  girl  being  un- 
well, and  the  door  left  open  for  the  use  of  her  nurse  (as 
no  man  can  doubt,  except  the  district  attorney) — this 
modern  Tarquin,  "  this  remorseless,  lecherous,  treacher- 
ous, kindless  villain  "  approaches,  and  finally  enters  her 
chamber,  and  there  commits — merciful  heaven,  what 
shall  I  call  it?  It  is  adultery,  at  the  least;  it  ap- 
proaches a  rape- — indeed,  it  is  almost  an  incest !  This  is 
the  man  who  is  eulogized  and  applauded  to  the  very  echo 
by  the  district  attorney.  This  is  the  man  over  whose 
ashes  the  commonwealth  weeps ;  and  to  conceal  whose 
crimes  the  commonwealth  spreads  her  immaculate  and 
impervious  mantle — I  wish  I  could  plant  flowers  on  his 
grave,  but  they  would  only  wither.  If  a  man  forty-eight 
years  old  ;  holding  the  position  of  a  father ;  professing  to 
be  a  guardian  and  a  benefactor ;  receiving  an  innocent  girl 

into  his  charge,  in  double  trust  from  her  parent,  can  be 

23 


354  FORENSIC    SPEECHES   OP   DAVID   PAUL   BROWN. 

capable  of  committing  such  a  crime  as  tbis ! — he  exceeds 
all  limits  of  penitence, — all  hope  of  mercy !    Let  him 

"  Never  pray  more  :  abandon  all  remorse  ; 
On  horror's  head  !  horrors  accumulate  ! 
Do  deeds  to  make  Heaven  weep, — all  earth  amaz'd. 
For  nothing  can  he  to  damnation  add — 
Greater  than  that." 

The  defendant's  acquaintance  with  Miss  McCauley,  or 
rather  his  first  interview,  took  place  some  time  in  the 
spring  of,  I  think  it  was  May,  1856. — It  was  then,  as  you 
will  remember,  that  he  said  "  She  was  a  girl  that  filled 
his  eye."  He  had  been  a  traveller  North  and  South, — 
and,  as  he  expressed  himself,  had  determined  that,  in 
choosing  a  help-mate  for  life  he  would  neither  take  a 
Northern  nor  a  Southern  lady,  but  one  from  the  Key- 
stone State,  as  combining  the  warmth  of  the  South  with 
the  strength  of  the  North.  Well,  as  we  have  said,  he  sees 
Miss  McCauley,  and  she  makes  an  impression  upon  his 
too  sensitive  and  susceptible  heart.  He  is,  however,  soon 
drawn  away  by  his  occupation — and  perhaps  time  might 
have  obliterated  this  impression,  but  that  in  the  month 
of  August,  1856,  while  employed  in  pursuit  of  his  busi- 
ness in  New  York,  he  is  visited  by  his  sister,  who  in- 
forms him  that  Miss  McCauley  had  written  to  him,  and 
had  requested  her  to  inquire  whether  he  had  received  the 
letter.  This,  let  it  be  remembered,  was  after  the  inter- 
course with  Carter,  at  Jones'  Hotel.  Time  is  the  great 
discoverer.  It  is  but  a  month  after  she  has  been  deflow- 
ered. This  poor,  unsuspecting  young  man  is  overjoyed  at 
the  idea  of  having  captivated  a  blooming  young  girl,  by 
whom  he  had  been  so  deeply  impressed  at  a  first  and 
single  interview.  He  has  never  received  the  letter,  but 
the  recollection  of  her  beauty  is  agreeably  brought  back 
to  his  mind  by  this  indication  that  there  is  at  least  one 
person  in  the  world  besides  the  sister — who  now  clings 
around  him — to  whom  his  welfare  is  not  indifferent. 


SMITH'S  CASE.  355 

IvTow  observe  the  delicacy,  the  respect,  the  inborn  gentle- 
ness of  the  prisoner — he  does  not  write  directly  to  Miss 
McCauley,  but  addresses  his  letter  to  Tamaqua,  to  the 
care  ot  Richard  Carter. 

After  this,  in  the  month  of  December,  Carter,  Miss 
McCauley,  Miss  Smith  and  the  defendant  are  found  in 
Philadelphia,  at  the  Madison  House.  At  this  period  she 
is  nearly  five 'months  gone  with  child — a  matter  perfectly 
well  known  to  Carter,  and  of  course  to  her.  At  this 
very  time  she  exhibits  the  engagement  ring,  and  apprises 
Mr.  Carter  of  her  intention  to  be  married  to  the  defend- 
ant. In  addition  to  this,  it  is  clearly  established  by  sub- 
sequent interviews  and  conversations,  that  he  had  full 
knowledge  of  it,  and  that  it  met  his  approval.  What  is 
the  meaning  of  Carter's  coming  to  town  to  dine  with 
Smith — going  to  church  with  him  and  the  ladies — asking 
for  the  postponement  of  the  marriage  for  a  few  days,  in 
order  that  his  presence  might  give  it  more  form,  cere- 
mony and  sanction  ?  And  yet  the  district  attorney  says 
that  he,  Carter,  never  knew  of  it,  and  considered  it  as  a 
joke.  I  should  consider  an  argument  of  this  character, 
in  the  face  of  such  facts  as  these,  and  the  subsequent 
ratification  of  the  marriage,  as  the  worst  sort  of  a  joke,— r 
a  joke  calculated  to  bring  into  ridicule  both  truth  and 
justice. 

Smith  does  not  postpone  the  marriage  ;  he  did  not  feel 
bound  by  the  suggestions  of  Mr.  Carter  in  relation  to  it. 
To  use  his  own  language,  he  did  not  marry  her  for  pecu- 
niary advantage,  or  in  reference  to  Mr.  Carter's  wealth — 
he  married  her  for  her  own  wealth,  and  as  the  daughter  of 
a  poor  man.  But,  we  are  told,  Carter  wrote  a  letter  to  her, 
intimating,  that  she  had  better  not  get  married,  knowing 
her  "  situation.'1  This  shows  two  things : — First,  that  he 
was  the  father  of  her  child,  as  we  aver. — Secondly,  that 
he  knew  of  the  intended  marriage,  which  they  deny.  The 
writing  of  that  letter  clear, y  confirms  the  paternity  of  the 
child,  and  as  clearly  shows  his  knowledge  of  the  intended 


356  FORENSIC   SPEECHES  OF  DAVID   PAUL   BROWN.     . 

marriage.  This  letter  is  shown  to  the  defendant  while  in 
the  full  tide  of  hope  and  happiness.  Surprise  has  been 
expressed  that  it  did  not  put  him  on  his  guard  ;  there  are 
many  reasons  why  it  should  not  put  him  on  his  guard. 
In  the  first  place,  nothing  is  so  blind  as  love.  In  the 
second  place,  its  very  exhibition  by  his  betrothed,  would 
have  closed  his  eyes,  if  they  were  as  keen  as  an  eagle's. 
In  the  third  place,  if  he  had  been  lynx-eyed,  what  could 
he  have  seen — being  innocent  himself — incompatible  with 
the  innocence  of  the  woman  of  his  affections,  in  the  terms 
"  your  situation  ?"  Certainly,  that  does  not  imply  an 
adulterous  connection.  "Well,  then,  in  these  circumstances, 
no  human  voice  forbidding,  and  all  apparently  approving, 
on  the  16th  day  of  December,  1856,  they  were  married. 
Was  ever  matrimony,  for  a  time,  more  blessed  with  seem- 
ing happiness ;  and  on  his  part,  with  more  pure  and  noble 
kindness  of  heart,  or  more  marked  devotion  to  the  part- 
ner of  his  bosom  ?  Certainly  never.  At  home  or  abroad 
he  is  still  the  same.  You  may  remember,  that  while  on 
a  brief  sojourn  in  New  York — whither  his  business  had 
drawn  him — he  spoke  rapturously  of  his  conjugal  bliss — 
of  his  having  brought  all  his  wanderings  to  a  close  ;  that 
he  was  about  now  to  settle  down  in  domestic  peace,  and 
in  companionship  with  a  virtuous  woman,  and  his  first 
love  You  .will  remember,  gentlemen  of  the  jury,  the 
touching  little  incident  of  his  removing  the  miniature  of 
his  wife  from  beneath  his  pillow,  and  repeatedly  and 
rapturously  kissing  it ;  and  then,  when  detected  in  this 
spontaneous  manifestation  of  his  feelings,  by  one  of  his 
friends  who  was  present,  concealing  it  in  his  bosom,  to 
rest  upon  his  heart. 

"  If  Heaven  had  made  him  such  another  world, 
Of  one  entire  and  perfect  chrysolite  1 
He'd  not  have  sold  her  for  it." 

Permit  me  now  to  present  to  you,  gentlemen,  as  the 
shadow  to  this  bright  picture,  a  scene  of  misery,  of  con- 


SMITH'S  CASE.  357 

jugal  and  domestic  misery — such  as  you  have  rarely,  if 
ever,  beeu  condemned  to  witness. 

He  at  length  returns  from  New  York,  ajid  scarcely  re- 
turns, when  he  is  suddenly  informed  that  his  wife  is  in 
the  peril  incident  to  a  premature  birth.  This  is  on  the 
10th  of  April,  1857.  Full  of  anxiety,  he  rushes  to  Mrs. 
Leonard  and  her  husband,  to  inquire  what  is  to  be  done 
with  the  embryo-birth.  He  wishes  also  to  know  the  pro- 
bable extent  of  his  wife's  danger ;  his  anxieties  and  his 
sensibilities  are  excited  to  the  highest  possible  degree  ;  all 
his  hopes  are  centred  in  her ;  all  his  fears  relate  to  her  ; — 
he  prepares  the  nurse  ;  introduces  Mrs.  Leonard ;  rushes 
for  the  doctor ;  congregates  around  him  almost  all  that 
he  knew.;  summons  them  for  what;  to  relieve  his  beloved 
wife  from  peril ! — and  there  they  stand,  living  witnesses 
to  her  unsuspected  degradation,  and  his  undying  infamy ! 
There  they  stand,  to  prove  his  wife  a  wanton;  and  him- 
self a  wretch,  unfit  to  crawl  upon  the  earth  !  There  are 
the  Leonards — the  nurse — the  doctor — the  sister — and  the 
domestics  of  the  establishment — all  witnesses  of  this  most 
deplorable  scene  1 

When  he  goes  for  the  doctor  and  consults  him,  he  in- 
quires, after  what  period  of  gestation  a  child  might  be 
born  alive?  "Well,"  replies  the  doctor,  "it  might  live 
possibly  at  six  months ;  but  at  seven  or  eight  months  its 
living  would  be  quite  probable."  "  Alas !  then,"  says 
Smith,  "  I  am  childless,  and  there  is  no  hope,  as  I  have 
been  married  less  than  four  months."  The  doctor  goes 
to  the  room  of  the  patient,  prepared  for  an  abortion  ;  and 
upon  examination  ascertains,  to  his  surprise,  that  she  has 
reached  her  full  term !  He  returns  home.  In  a  few 
hours  poor  Smith  rushes  again  after  him,  and  upon  the 
doctor's  second  visit,  this  faithless  woman  is  delivered  of 
a  child  of  full  nine  months'  gestation !  Look,  for  a 
moment,  at  this  melancholy  picture !  Look  at  the  accu- 
mulated horrors  which  distract  his  brain !  Look  at  the 


358  FORENSIC    SPEECHES   OF   DAVID   PAUL  CROWN. 

publicity  which  he,  himself,  has  contributed  to  give  to 
this  story  of  disgrace  and  woe ! 

The  doctor  attempts  to  cheer  him,  by  saying  "you  are 
not  the  first  man  who  has  been  presented  with  a  child  in 
so  short  a  time  after  marriage." — "But,"  says  Smith, 
fully  comprehending  this  insinuation,  "  I  tell  you,  I  have 
been  married  less  than  four  months,  and  I  never  knew  my 
wife  until  after  the  sanctions  of  my  marriage.  Indeed, 
whatever  may  have  been  my  faults  through  life — and  they 
may  have  been  many — I  can  truly  say,  t  have  never  been 
guilty  of  illicit  intercourse."  Thus  circumstanced,  tell 
me,  ye  severest,  what  could  he  have  done  ? 

"  Had  it  pleased  heaven — 
To  try  him  with  afflictions  ;  had  it  rained 
All  kinds  of  sores  and  shames  on  his  bare  head — 
Steep'd  him  in  poverty  to  the  very  lips — 
Given  to  captivity  him  and  his  utmost  hopes  ; 
He  should  have  found,  in  some  part  of  his  soul, 
A  drop  of  patience  :— But,  alas  !  to  make  him 
A  fixed  fi<rure  for  the  time  of  scorn 
To  point  his  slow  unmoving  finger  at ! — 
Yet,  could  he  bear  that  too — well,  very  well  ! 
But  there  !  where  he  had  garnered  up  his  heart- 
Where,  either  he  must  live  or  bear  no  life  ! 
The  fountain,  from  the  which  his  current  runs, 
Or  else  dries  up  ;  to  be  discarded  thence  ! 
Turn  thy  complexion  tJiere, 

Patience,  thou  young  and  rose-lipp'd  cherubim — 
Aye  1  there  look  grim  as  hell !" 

Do  you  remember  the  description  of  the  nurse?  Do 
you  remember  how  he  fell,  in  an  instant,  from  the  top- 
most to  the  lowest  round  of  ambition  and  love?  Still, 
his  gentleness  and  his  kindness,  in  this  terrific  shock,  at 
least,  partially  remained.  When  about  to  desert  these 
scenes  of  his  former  joy ;  upon  being  asked  by  his  wife, 
if  he  would  take  the  wedding-ring  he  had  given  her,  and 
the  Bible,  which  he  had  presented  to  her,  "  No,"  was  the 
reply,  "  I  leave  the  former  as  a  memento  of  my  afi'ection, 


SMITH'S  CASE.  359 

and  I  leave  the  latter  for  the  improvement  of  your  future 
life,  and  your  consolation  for  what  has  passed."  Call  to 
mind,  if  you  please,  the  description  of  the  scenes  trans- 
acted in  that  room.  He  threw  himself  across  his  trunk, 
while  preparing  for  his  departure,  and  wept  as  no  man 
ever  wept.  The  nurse  says :  "  In  all  her  experience,  she 
never  witnessed,  before,  such  a  scene  of  sadness,  agony, 
wretchedness,  and  horror !"  This  untutored  description 
was  the  very  perfection  of  eloquence,  springing  sponta- 
neously from  the  heart. 

Almost  immediately  after  this  appalling  discovery,  the 
defendant  forwards  a  letter  to  his  sister, — that  lovely  and 
devoted  girl,  who  now  clings  so  closely  to  him,  in  his  hour 
of  extremest  need.  He  beseeches  her  to  come  up,  for 
God's  sake !  Immediately,  upon  the  wings  of  affection, 
she  flies  to  him.  She  finds  him  in  the  lowest  depths  of 
grief — he  embraces  her — weeps  upon  her  bosom — begs  of 
her  to  control  him,  and  to  act  for  him ;  and  being  totally 
incapable  of  self-government,  he  relinquishes  himself  en- 
tirely to  her  guidance.  He  tells  her  he  has  been  most 
grossly  deceived ;  that  his  honor  is  in  the  dust ;  that  he 
would  as  soon  have  suspected  the  angels  of  heaven  of  a 
wrong,  as  his  wife.  "  Oh,  God  !  how  I  loved  her,  how  I 
worshipped  her, — and  this  is  my  reward !"  His  sister 
endeavors  to  console  him,  telling  him  he  must  rise  in  his 
manhood  and  strive  to  outlive  his  difficulties  ;  that  there 
was  seldom  a  life  pictured  so  dark  as  to  admit  of  no  ray 
of  hope.  She  refers  him  to  the  only  source  of  true  conso- 
lation, to  which  he  replies :  "  Would  you  not  have  a  man 
feel  when  he  has  his  heart  taken  from  his  living  body  ?" 
and  then,  in  broken  sentences,  adds,  through  his  sobs  and 
groans.  "  I  was  born  to  misery — my  life  has  been  one  of 
continued  sorrow — I  have  known  what  it  was  to  be  a 
fatherless  boy — I  have  known  the  sorrows  of  orphanage — 
I  have  been  a  houseless  wanderer  in  a  strange  land — I 
have  buried  most  of  my  kindred — I  have  stood  by  the 
grave  of  my  mother — one  of  the  purest  spirits  ever  lent 


360  FORENSIC   SPEECHES  OP   DAVID   PAUL  BROWX. 

to  earth — no  son  ever  idolized  a  mother  as  I  did  mine — 
but  all  my  life-sorrows  are  nothing  to  this !  This  is  the 
grave  of  all  my  hopes — ah  !  merciful  God,  why  was  Inborn 
to  such  a  fate !  This  grief,  says  the  witness,  continued 
with  little  abatement  until  the  evening  of  the  day,  when 
he  tore  himself  away  from  this  scene  of  his  agony, and 
disgrace. 

Where  do  we  find  him  next  ?  It  would,  indeed,  be 
difficult  to  trace  him  in  his  erratic  course — he  passes  back 
and  forth  in  his  devious  career — sometimes  in  Washing- 
ton— then  among  the  mountains  of  Virginia — then  at 
Baltimore — then  at  North-east — then  at  New  York. 
Wherever  he  went,  he  fancied  he  moved  with  the  in- 
delible mark  of  Cain  upon  his  brow  !  like  Cain  he  wan- 
dered a  vagabond  and  a  fugitive  upon  the  face  of  the 
earth — like  Cain  he  sought  death,  while  death  seemed  to 
flee  from  him. 

He  seeks,  at  length,  relief  from  Mr.  Townsend  ;  but 
even  there  he  finds  that  the  law  affords  no  relief  for  one 
in  his  hapless  condition.  He  grows  daily  worse  and  worse. 
His  constitution  is  ruined,  his  nervous  system  destroyed — 
his  heart  is  broken — and  he  resigns  himself  to  one  horri- 
ble and  absorbing  thought,  which  sways  the  entire  em- 
pire of  his  mind.  He  conceives  that  he  is  hunted  where- 
ever  he  goes,  by  his  betrayer  and  his  spies — surrounded 
by  them  in  Washington — pursued  by  them  in  Baltimore 
— and  threatened  by  them  in  Philadelphia.  All  these 
scenes  and  circumstances  have  been  minutely  related  by 
the  witnesses  examined  in  this  cause.  Finally,  laboring 
under  this  delusion — a  delusion  arising  from  the  actual, 
the  unparalleled  sufferings  to  which  he  had  been  doomed 
for  the  last  six  months — he  again  reaches  this  city  in  the 
latter  part  of  October,  1857. 

The  state  of  his  mind,  as  manifested  by  his  conduct, 
— produced  directly  by  the  wreck  which  his  sorrows  had 
made — has  been  so  graphically  described  by  Murphy, 
Davis,  Campbell,  and  others  who  speak  of  his  condition, 


SMITH'S  CASE.  361 

within  less  than  three  days  of  the  time  of  this  lamentable 
catastrophe,  as  to  leave  uo  doubt  upon  the  mind  of  any 
man  who  is  not  himself  mdd,  that  the  prisoner  was,  at 
that  period,  an  irresponsible  agent.  The  voice  of  reason 
was  either  no  longer  heard,  or  heard  through  a  false  and 
perverted  medium.  The  will,  which  may  appropriately 
be  called  the  executive  officer  of  reason,  had  lost  its  power 
and  control.  It  was  overthrown  or  so  subjugated,  as  to 
play  the  pander  to  those  delusions  of  mind,  which  it  was 
utterly  unable  to  resist. 

We  do  not  contend  for  the  exemption  of  intensity  of 
passion,  from  punishment — though  there  might  be  some- 
thing in  the  horrors  of  this  case  to  excuse  even  that : 
what  we  contend  for,  is  simply  this,  that  where  passion 
and  delusion  too  (whether  that  delusion  arise  from  actual, 
or  imaginary,  suffering),  combine  together  against  the 
reason  and  the  will,  and  thereby  overthrow  all  mental 
government  and  moral  restraint,  that  there  is  no  respon- 
sibility for  anything  that  may  be  done  under  the  impulses 
arising  from  this  deranged  condition  of  both  body  and 
mind.  There  is  not  a  madman,  in  a  lunatic  asylum,  whose 
insanity  is  not  to  be  referred  to  this  disorganization — to 
this  revolution  in  the  moral  and  mental  structure — to  this 
rebellion,  as  it  may  be  called,  of  a  man  against  himself: 
his  reason  is  not  extinct ;  but  instead  of  swaying  the  gov- 
ernment, it  becomes  subordinate ;  and  passion  and  illusion 
usurp  its  sceptre.  This  is  what  I  call  insanity  !  Do  you 
ask  me  for  its  manifestations?  I  will  answer  you — for  I 
profess  to  know  as  much  upon  that  subject  as  any  of  the 
witnesses ;  or  as  any  of  the  books  exhibit  that  have  been 
presented  here  before  you.  If  I  show  you  a  man,  who 
has  lived  the  consistent  and  holy  life  of  a  professor  of  the 
gospel ;  at  peace  with  all  mankind,  and  what  is  better,  at 
peace  with  heaven — full  of  warm  affections,  and  lively 
sensibilities — meek  and  modest  as  it  becomes  the  vicege- 
rent of  the  Lord  to  be ;  and  all  of  a  sudden— or  after 
having  passed  through  the  heaviest  of  all  earthly  afflic- 


362  FORENSIC   SPEECHES  OF   DAVID   PAUL   BROWN. 

tions — you  see  that  selfsame  man  playing  the  recreant 
and  the  ruffian  ;  profaning  the  Almighty  ;  trampling  upon 
his  laws,  and  cursing  and  swearing  without  excuse  01 
apparent  provocation ! — What  would  you  say  of  that 
man?  Would  you  pronounce  him  sane  or  insane?  These 
are  manifestations  of  insanity:  the  sudden,  total  and 
anomalous  transition  from  all  that  was  moral  and  vir- 
tuous, to  all  that  is  vicious  and  devilish ! 

"  Now  look  upon  that  picture,  and  on  this ;"  compare 
them  and  see  whether  they  correspond  or  differ.  The 
mind,  of  all  wonders,  is  the  most  wonderful;  and  the 
complicated  machinery  of  the  body  through  which  it 
operates,  and  by  which  it  manifests  itself,  is  scarcely  less 
wonderful — the  former  is  of  Heaven,  the  latter  of  earth — 
the  former  is  immortal ;  but  by  that  very  immortality  it 
dignifies  its  tenement  of  clay.  Where  they  act  in  con- 
cert— where  the  emotions  of  the  heart  and  the  dictates  of 
the  head  are  in  unison — entire  and  perfect  harmony  pre- 
vails ;  but  in  the  conflicts  of  the  passions  of  the  human 
heart  with  the  intellectual  government,  disorder  and  mis- 
rule in  both,  are  the  terrible  result — both  are  consequently 
enfeebled :  or  if,  finally,  the  morbid  affections  of  the 
heart  should  acquire  the  ascendancy  over  the  intellectual 
powers,  reason,  as  I  have  said,  must  necessarily  be  over- 
thrown. 

But  again  :  so  fearftilly  and  wonderfully  are  we  made, 
that  by  the  excessive  indulgence  of  an  unrestrained,  mor- 
bid passion;  or  by  an  insurmountable  obstacle  suddenly 
checking  that  indulgence,  insanity  is  equally  likely  to  en- 
sue. A  check  to  the  ruling  passion  of  pride,  of  love,  of 
hope,  of  patriotism,  of  ambition — an  utter  check,  when 
those  passions  are  at  their  highest  tide — will  cause  them 
(to  use  a  strong  figure)  to  overflow  the  banks  of  reason, 
and  spread  around  them  destruction  and  desolation ! 
This  is  what  is  called  monomania — and  is  characterized 
by  the  ruling,  or  despotic  propensity.  Why  did  Lord 
Castlereagh  destroy  himself?  Why  did  Mr  Whitbread 


SMITH'S  CASE.  363 

destroy  himself?  both  prime  ministers  of  England — be- 
cause they  were  so  ensnared  by  political  wiles  as  to  be 
defeated  in  the  objects  of  their  ambition  ;  they  became 
mad ;  and  suicide  was  the  result.  Why  did  Sir  Samuel 
Romilly  take  his  own  life  ? — a  man  of  the  highest  intellect 
and  the  warmest  heart — who  was  at  once  a  public  and  a 
private  example — while  revelling  upon  the  very  summit 
of  distinction,  and  professional  honor :  he  was  bereft  of 
the  partner  of  his  bosom.  His  ruling  passion  was  re- 
sisted ;  life  became  no  longer  of  any  value ;  and  he  termi- 
nated it  with  his  own  hand.  The  coroner's  inquest  placed 
all  these  deaths  to  the  account  of  insanity. 

Come  we  now  "  to  the  last  scene  of  all,  that  ends  this 
strange,  eventful  story."  On  the  fourth  day  of  Novem- 
ber, 1857,  at  about  five  o'clock  in  the  afternoon,  Smith 
presents  himself  at  the  parlor  of  the  St.  Lawrence  Hotel. 
At  half  past  four,  of  the  same  day,  you  find  him  at  the 
store  of  Mr.  Davis,  in  Walnut  street,  below  Fourth. 
There  is  nothing  from  which  we  could  infer  that  he 
visited  the  hotel  with  any  design,  or  that  he  even  knew 
that  Carter  was  there.  The  weapons  were  not  prepared : 
it  has  been  proved  they  were  generally  worn,  almost  as  a 
part  of  himself,  in  his  travelling  agencies.  Those,  let  it 
be  remembered,  were  the  very  weapons  that,  out  of  dis- 
trust of  his  own  self-control,  he  had,  sometime  before  this, 
deposited  with  Mr.  Brinton  ;  expressing  the  desire  that 
he  should  hold  them  in  safe  keeping,  and  not  surrender 
them  again  to  the  owner  even  if  he  should  beg  and  pray 
for  them — as  he  was  afraid — mark  that  word,  that  if  he 
should  encounter  the  man  who  had  betrayed  and  ruined 
him,  he  might  be  impelled,  resistlessly,  to  commit  some 
act  of  violence.  Possessed  of  these  weapons,  as  I  have 
said,  he  encounters  his  adversary — a  powerful,  bold,  bad 
man.  As  he  approaches  him,  in  a  mild  and  modest  way 
— according  to  the  statement  of  the  nephew — Mr.  Carter 
"  seemed  not  to  know  him : " — seemed  not  to  know  the  wretch 
he  had  made  1 1  He  must  have  known  him,  notwithstand- 


364  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

ing  the  change,  perfectly  well.  He  knew  him  well  in 
December ;  he  knew  him  well  on  Good  Friday,  but  a  little 
week  before  the  birth  of  the  child ;  and  he  must  have 
haunted  his  sleeping  and  his  waking  thoughts  ever  since, 
if  he  had  any  conscience  to  influence  his  dreams,  or  to 
stimulate  his  reflections.  This  very  cold-blooded  inso- 
lence and  cruelty,  was  enough  to  rouse  the  lion  in  any 
man,  sane  or  mad  !  They  are  seated  on  the  sofa  beside 
each  other,  conversing  in  a  subdued  tone ;  so  as  to  render 
it  impossible  for  the  defence  to  extract  from  any  of  the 
inmates  of  the  hotel,  who  were  present  at  the  time,  even  a 
single  word,  from  which  we  might  guess  at  the  nature  of 
their  conversation.  We  are  merely  told,  by  the  nephew, 
that  Carter  "  smiled"  Gracious  Heavens !  could  that  man 
smile  amidst  the  wreck  and  ruin  he  had  made ! 

Exactly  what  took  place  between  them  none  shall  say, 
but  you  may  imagine — nay,  you  are  bound  to  infer,  from 
the  affected  want  of  recognition,  and  that  lurid  smile, 
that  he  taunted  the  man  he  had  betrayed. .  Was  this, 
think  you,  a  smile  of  benevolence — of  sympathy — of  con- 
dolence ;  or  was  it  the  smile  of  a  demon  in  contemplating 
the  agonies  of  his  victim.  You  may  judge  of  it  partly 
from  the  result  that  follows.  Had  he  denied — had  he  ex- 
plained his  iniquities — had  he  poured  balm  into  the  heart 
he  had  lacerated,  this  deplorable  event  might  not  have 
taken  place. — Everything  tends  to  show  that  his  conduct 
opened  the  wounds  which  time  had  scarcely  cicatrized  ; 
and  produced  an  impulsive  and  involuntary  act,  which 
deprived  him  of  his  life,  and  has  brought  the  defendant, 
borne  to  the  earth,  with  unmerited  odium  and  grief,  to 
abide  this  fearful  charge.  There  is,  however,  a  Provi- 
dence even  in  the  fall  of  a  sparrow  ;  and  we  are  relieved 
from  all  doubt,  upon  that  subject,  by  the  unintentional 
disclosures  derived  through  the  commonwealth  itself. 
The  district  attorneys,  perhaps,  will  hardly  choose  to 
remember  a  fact,  which  had  been  brought  out  not  by  the 
will,  but  by  the  blundering,  of  the  prosecution.  It  was 


SMITH'S  CASE.  365 

the  very  important  fact  testified  by  Lieutenant  Deckhart 
— their  own  witness  (while  they  endeavored  to  extract 
from  him  the  confessions  of  the  prisoner,  in  order  to  a 
conviction),  that  the  prisoner  in  his  conversation  re- 
marked, he  "  had  done  justice  between  God  and  man  ;" 
and  then  added,  referring  to  the  conversation  with  Carter 
on  the  sofa,  "  he  had  even  the  audacity  to  tell  me  he  was  going 
to  see  my  sister  /"  Do  our  friends  on  the  other  side  now  re- 
member this?  Do  the  jury  remember  this  ?  That  is  the 
spark  that  exploded  the  magazine  !  If  he  had  been  ten 
times  sane;  excited  by  his  past  wrongs,  it  would  have 
driven  him  mad;  but  being  mad,  and  this  being  connected 
in  his  distracted  thoughts,  with  the  monomania  under 
which  he  labored,  it  tended  directly  to  that  catastrophe 
which  is  the  subject  of  this  indictment.  [Here,  District 
Attorney  Mann,  interrupting  the  speaker,  observed,  "  There 
was  no  such  evidence  given,  as  I  remember."  Mr.  Brown, 
"  Look  to  your  notes,  it  will  be  found  in  the  evidence  of 
the  lieutenant  of  police,  who  conveyed  the  defendant  to 
prison."  The  counsel,  examining  their  notes,  admit  it  is 
there.] 

Immediately  after  the  threat  of  Carter  to  visit  the  sis- 
ter of  the  defendant  (showing  that  my  view  of  its  effect 
is  right),  they  simultaneously  spring  to  their  feet — and  in- 
stantly Carter  receives  a  ball  in  his  heart.  Then,  turning 
from  his  victim,  with  that  glaring  and  remarkable  ex- 
pression of  the  eye  which  was  noticed  by  all  the  wit- 
nesses, the  prisoner  declares  that  he  "  will  surrender  to  no 
one  but  an  officer  of  the  law."  No  doubt  that  even  here, 
he  was  governed  by  the  illusion  that  he  was  surrounded 
by  Carter's  spies.  This  is  just  the  conduct  of  a  maniac. 
If  this  had  been  the  act  of  a  calculating  avenger,  would 
it  have  been  suspended  or  deferred  for  six  long  months  ? 
Would  he  not  have  gone  to  Tamaqua  ?  Is  Tamaqua  at 
the  opposite  end  of  the  world  ?  Could  not  the  act  have 
been  perpetrated  there,  without  the  probability  of  affect- 
ing his  own  life ;  in  the  by-ways  of  the  country,  in  the 


366  FORENSIC   SPEECHES   OF   DAVID    PAUL   BROWN. 

concealments  of  ravines  and  coal-pits?  Is  it  to  be  doubted, 
that  a  man  who  had  even  a  malicious  mind  to  direct  him, 
would  have  sought  his  own  destruction  ;  when  it  might 
have  been  readily  avoided,  and  his  vengeance  rendered 
equally  sure  ?  To  say  that  he  was  bent  upon  a  double- 
death,  is  to  give  up  one-half  of  the  argument  of  his 
sanity.  In  short,  it  is  almost  conclusive,  with  the  other 
proofs,  of  his  total  insanity.  But  they  tell  us  that  we  are 
bound  to  prove  insanity — to  prove  it  clearly — and  to  show 
it  existed  on  the  4th  of  November — and  at  the  very  mo- 
ment of  the  commission  of  this  act.  We  have  done  so. 
We  have  shown  it,  in  its  incipient  stages,  months  prior  to 
the  act.  We  strengthened  that  proof,  by  evidence  of  the 
ancestral  taint  of  insanity  in  the  mother's,  and  in  the 
father's  line.  We  have  traced  him  down  to  the  very 
day,  almost  the  very  hour,  when  the  act  was  perpetrated. 
We  have  shown  you  that  his  monomania  culminated  at 
that  time — and  that  his  reason  was  dethroned  ;  and  we 
have  given  you  the  immediate,  proximate  and  exciting 
cause  of  that  dethronement.  Our  defence  then  is,  that 
he  was  morally  and  mentally  irresponsible — and  that  this 
irresponsibility  was  produced  by  the  very  man  who  was 
its  victim ! 

Allow  me  here  to  say,  that  I  am  utterly  amazed  that 
the  commonwealth's  counsel  should  have  been  so  puzzled 
and  perplexed  with  the  doctrines  of  monomania;  and 
that  they  should  have  conceived,  that  because  insanity  is 
exhibited  in  reference  to  one  illusion,  it  follows  that  that 
illusion  does  not  indicate  a  general  unsoundness  of  mind. 
The  human  mind  is  not  like  a  piece  of  mechanism, 
wherein  one  wheel  may  turn  the  wrong  way,  without 
impairing  all  the  others.  In  the  mind,  it  may  be  said,  if 
the  expression  be  allowable,  that  the  one  wheel  turns 
wrong,  because  all  the  others  are  more  or  less  out  of  har- 
mony or  order.  It  is,  in  short,  from  the  general  infirmity, 
that  monomania  is  produced ;  which,  in  its  turn,  re-infects 
the  rest,  and  at  times  would  seem  to  transfer  its  own  de- 


SMITH  S   CASE. 


367 


ranged  character,  if  we  may  use  the  phrase,  to  the  entire 
mental  machine.  "When  a  mortification  is  detected  at 
the  extreme  end  of  the  finger,  a  skilful  pathologist 
knows  at  once  that  there  is  danger  to  human  life — that 
the  disease  is  not  merely  local,  but  is,  or  will  become,  con- 
stitutional ; — and  when  a  cancer,  in  the  smallest  shape, 
presents  itself  on  the  surface  of  the  human  frame,  it  loses 
its  insignificance  when  it  is  remembered  as  a  denotement 
of  its  having  spread  its  destructive  fibres  through  every 
portion  of  the  vital  system,  riding  as  it  does,  upon  the 
blood — which  is  the  life  of  man. 

The  most  clear,  simple,  and  beautiful  illustration  of  the 
doctrine  for  which  we  contend — and  it  is  marvellous  that 
it  was  overlooked  by  the  learned  gentlemen — is  derived 
from  the  loftiest  human  intellect  the  world  ever  knew, 
and  presented  in  the  insanity  of  King  Lear ;  to  which,  at 
the  risk  of  being  considered  too  poetical,  and  too  enthu- 
siastic in  my  admiration  of  the  author,  I  shall  take  leave 
to  refer.  There  are  two  books  which  I  shall  never  be 
afraid  or  ashamed  to  quote,  and  which  are  worth  more 
than  all  the  authorities — whether  bound  in  calf  or  lined 
with  calf — that  have  here  been  arrayed  in  support  of  the 
prosecution.  The  first  is  the  Bible — the  foundation  of  our 
eternal  hopes:  the  second  is  Shakspeare — the  great  ex- 
pounder of  all  the  springs  and  motives  of  human  action. 

The  earliest  indication  of  the  approaching  mental  in- 
firmity of  the  aged  king,  is  in  the  interview  with  his 
daughters,  in  which  he  discards  Cordelia  from  his  heart, 
from  her  supposed  want  of  filial  affection  ;  and  then 
divides  his  kingdom  between  Goneril  and  Regan,  as  a 
reward  for  their  professions  of  devoted  love.  When, 
subsequently,  these  ungrateful  daughters  lop  off  their 
father's  retainers, — abridge  his  comforts, — deny  his  au- 
thority,— and  punish  his  friends ;  then  it  is  that  the 
whole  current  of  his  feelings,  or  his  passions,  is  turned 
back  upon  itself ;  and  his  insanity  is  displayed  more  fully 
than  as  originally  exhibited.  He  becomes,  then,  a  mono- 


363  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

maniac,  tinder  the  direct  influence  of  the  rebellion  of  his 
children  :  the  unexpected  discovery  of  which,  is  the  im- 
mediate and  exciting  cause.  We  have  neither  time,  nor 
disposition,  minutely  to  trace  the  progress  of  his  mental 
alienation ;  but  in  support  of  the  theory  assumed  in  this 
part  of  our  argument,  and  in  refutation  of  the  fallacies 
of  the  commonwealth,  let  us  refer  to  his  language  while 
indulging  in  his  maniacal  ravings,  and  when  exposed  to 
the  peltings  of  the  pitiless  storm. 

"  Spit  fire  !  spout  rain  ! 

Nor  rain,  wind,  thunder,  fire,  are  my  daughters; 
I  tax  not  you,  you  elements,  with  unkindness, 
/  never  gave  you  kingdom,  calVd  you  children; 
You  owe  me  no  subscription;  why  then  let  fall 
Your  horrible  pleasure; — here  I  stand  your  slave, 
A  poor,  infirm,  weak,  and  despised  old  man  : — 
But  yet  I  call  you  servile  ministers. 
That  have  with  two  pernicious  daughters  joined 
Your  high  engender'd  battles,  'gainst  a  head 
So  old  and  white  as  this.     O  !  O  !  'tis  foul !" 

What  say  our  learned  friends  now?  Do  they  maintain 
that  there  can  be  no  illusion  growing  out  of  facts  ?  Do 
they  say  that  there  can  be  no  reason  iij  madness  ?  "  !N"o 
matter  and  impertinency  mixed  ?"  If  they  do,  they  have 
my  answer  as  thus  derived  from  the  knowledge  of  one, 
whose  authority  has  never  been  disputed. 

But  they  tell  us  that  he  was  not  so  mad  but  that  he 
knew  RIGHT  from  WRONG.  We  do  not  utterly  deny 
that.  He  may  have  known  right  from  wrong,  as  respects 
matters  not  connected  with  his  monomania ;  but  you 
must  remember  that  he  conceived  he  "  was  doing  God  a 
service"  in  ridding  the  earth  of  his  betrayer — in  his  own 
language  that,  "  God  would  smile  upon  it"  Now,  this,  our 
learned  friends  will  not  say,  is  a  discrimination  between 
right  and  wrong:  and  as  concurrent  and  coincident  with 
this,  you  will  bear  in  mind,  that  he  was  perpetually 
haunted  by  the  notion  that  Carter  had  united  with  spies 


SMITH'S  CASE.  369 

for  his  .destruction,  and  was  ruthlessly  attempting  his  life. 
That  may  have  been  all  an  erroneous  fancy  or  an  illu- 
sion ;  but  what  then  becomes  of  the  prosecution :  they 
maintain  that  the  illusion  is  necessary  in  order  to  exempt 
him  from  punishment ;  and  the  only  way  in  which  they 
attempt  to  extricate  themselves  from  this  dilemma  is,  by 
suggesting  that  all  his  sufferings  were  real,  and  therefore 
not  illusory.  Have  the  gentlemen  forgotten  that  illu- 
sions may  spring  out  of  realities  ?  Does  not  their  Bible 
teach  them  that  *'  persecution  will  make  even  a  wise  man 
mad  ?"  Suffering  was  the  cause,  and  delusion  was  the 
effect;  and  the  two  combined  produced  this  fearful  result. 
The  doctrine  of  right  and  wrong,  however,  is  exploded  \ 
and  I  am  inclined  to  believe  that  those  who  originally 
adopted  it,  could  hardly  have  discriminated  between 
them. 

In  the  Monograph  on  "  Mental  Unsoundness,"  by  Dr. 
Morton  Stille*  and  Mr.  Wharton,  this  test  is  laid  down  to 
be  absurd,  and  almost  impossible — and  in  this  doctrine, 
the  highest  psychological,  and  physiological  authorities 
concur.  1st.  "  The  right  and  wrong  test,"  say  they  "  can 
never  be  rightly  applied,  because  it  rests  in  the  conscience, 
which  no  human  eye  can  penetrate.  2d.  It  is  useless, 
even  if  possible,  as  almost  every  case  of  decided  insanity 
is  accompanied  with  a  moral  sense."  In  illustration  of 
this  doctrine,  a  man  named  John  Billman,  confined  in 
the  penitentiary  for  horse  stealing,  murdered  his  keeper 
in  circumstances  of  great  brutality,  and  with  so  much  in- 
genuity as  to  elude  suspicions  of  his  intention,  and  almost, 
concealed  his  flight :  he  hung  a  noose  on  the  outside  of 
the  small  window,  which  is  placed  in  the  door  of  the  cell 
to  enable  persons  to  look  in  ;  he  then  induced  the  keeper 
to  put  his  head  entirely  through,  in  order  to  look  at  some- 
thing on  the  floor  directly  at  the  foot  of  the  door ;  the 
noose  was  then  drawn,  and  but  for  an  accident,  the  man 
would  have  been  suffocated.  Notwithstanding  this  at- 
tempt, the  same  keeper  was  inveigled  into  the  cell,  alone, 

24 


370  FORENSIC   SPEECHES   OF   DAVID   PAUL    BROWN. 

a  few  days  afterwards,  on  the  pretence  of  Bill  man  being 
sick,  and  was  then  killed.  Billmau  then  undressed  him 
— changed  clothes  with  him — placed  him  on  the  bed  in 
such  a  position  as  to  present  the  appearance  of  his  being 
there,  himself — traversed,  in  his  assumed  garb,  the  corri- 
dor— with  an  unconcerned  air,  addressed  a  careless  ques- 
tion to  the  gate-keeper,  and  sauntered  listlessly  down  the 
street,  on  which  the  gate  opened.  He  was,  however,  soon 
caught ;  but  his  insanity  was  so  indisputable,  that  the 
prosecuting  authorities,  after  having  instituted  a  careful 
and  skilful  examination,  became  convinced  of  his  irre- 
sponsibility, and  united,  upon  the  trial,  in  asking  a  ver- 
dict of  acquittal.  He  afterwards  disclosed  the  fact,  of  his 
having  several  years  back  murdered  his  father ;  in  cir- 
cumstances which  he  detailed  with  great  minuteness,  and 
which,  upon  inquiry,  were  found  to  be  true.  The  father 
had  been  strangled  in  his  bed — the  son  was  arrested  for 
the  crime,  but  so  artfully  had  he  contrived  the  homicide, 
that  by  means  of  an  alibi — got  up  by  a  rapid  ride  at  mid- 
night, and  a  feigned  sleep  in  a  chamber,  into  which  he 
had  clambered  by  a  window — he  was  acquitted.  Here 
there  was  not  only  a  sense  of  guilt,  but  a  keen  apprecia- 
tion of  the  consequences  of  exposure,  and  an  abundance 
of  evidence  of  a  long  harbored  intention,  and  intelligent 
design. 

Again,  when  Martin  set  fire  to  Yorkminster,  a  conver- 
sation took  place  at  a  neighboring  lunatic  asj-lum,  in 
reference  to  this  topic.  The  question  was,  whether  Mar- 
tin would  be  hanged  ;  and  in  its  discussion,  one  madman 
announced  to  the  others,  a  position  in  which  they  all  ac- 
quiesced, that  Martin  would  not  be  hanged,  because  he 
was  "one  of  themselves." 

It  certainly  will  not  be  maintained,  that  the  conscious- 
ness of  the  legal  relations  of  crime,  such  as  these  cases 
exhibit,  confers  responsibility,  where  it  does  not  otherwise 
exist. 

There  is  one  other  case,  with  which  our  illustrations  on 


SMITH'S  CASE.  371 

this  subject  will  close,  and  which,  perhaps,  is  more  extra- 
ordinary than  either  of  those  referred  to,  the  case  of 
"Wiley  Williams,  which  is  to  be  found  in  the  second  vol- 
ume of  the  "  Forum,"  page  477. 

Williams  was  a  gentleman  from  the  South,  and  had 
been  about  a  year  in  the  Blockley  Asylum ;  having  made 
his  escape,  he  wrote  to  counsel,  wishing  to  know  what 
legal  redress  could  be  obtained  for  his  unjust  confinement, 
ruined  prospects,  &c.  In  his  letter  he  thus  reasons  :  "  If 
I  cannot  obtain  redress  I  will  shoot  Dr.  Kirkbride  for 
having  imprisoned  me ;  and  should  I  be  tried  for  murder, 
my  defence  will  be  this — if  I  am  mad,  as  he  said,  I  can- 
not commit  a  crime ;  if  I  am  not  mad,  the  deceased  de- 
served death  for  having  deprived  me  of  liberty,  and 
blighted  my  hopes."  Following  up  this  design,  he  shortly 
after  introduced  himself  into  the  enclosure  of  the  garden 
of  the  asylum,  mounted  into  a  tree,  and  as  Dr.  Kirkbride 
passed,  shot  him  in  the  head  ;  but  happily  the  contents  of 
the  gun  lodged  chiefly  in  the  rirn  of  the  doctor's  hat,  and 
the  result  was  comparatively  harmless.  Williams  was 
afterwards  tried  in  this  very  court,  for  an  assault  and 
battery  with  intent  to  kill ;  but  his  insanity  being  estab- 
lished, as  he  predicted,  he  was  acquitted,  and  ordered 
into  strict  custody  in  the  penitentiary — where  he  shortly 
after  died,  having  never  been  restored  to  reason. 

But  the  counsel  have  further  expressed  their  surprise, 
at  what  they  call  the  suddenness  of  this  monomania. 
1st.  Let  us  inquire — was  it  so  sudden?  Remember,  he 
was  prepared  for  it — it  run  in  his  very  blood ;  he  had 
reached  the  very  time  of  life  when  it  disclosed  itself  in 
his  father ;  his  predisposition ;  his  age ;  the  exciting 
cause ;  all  cohered  and  united  together  to  bring  upon 
him  "  the  curse  of  the  burning  brow,  and  the  sleepless 
eye."  For  six  month  he  had  labored  under  the  influence 
of  his  afflictions ;  his  deplorable  condition  could,  there- 
fore, scarcely  be  said  to  be  sudden,  though  the  act  might 
be  sudden  that  eventually  arose  from  it ;  and  the  cause 


372  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

might  be  sudden  that  impelled  the  act,  which  was  directly 
connected  with  his  monomania.  Talk  of  suddenness — 
read  your  books — meditate  upon  human  nature — its  frail- 
ties and  its  weaknesses.  Did  you  never  hear — the  only 
case  that  I  think  it  necessary  to  refer  to — of  the  unfortu- 
nate young  man  who,  being  engaged  in  a  sporting  expedi- 
tion, shot  his  nearest  and  his  dearest  friend,  and  went 
mad  upon  that  subject  on  the  instant;  and  ever  after  spoke 
of  little  else  than  the  calamity  which  brought  him  to  this 
most  unhappy  condition.  According  to  our  friend's  no- 
tion, he  could  not  have  been  mad:  first,  because  it  was 
too  sudden ;  secondly,  because  the  origin  of  his  madness 
still  dwelt  deep  in  his  memory. 

The  best  view  of  the  character  and  causes  of  insanity, 
is  to  be  found  in  Dr.  Burrows'  Commentaries,  page  9, 
which  runs  thus :  "  Every  impression  on  the  sensorium, 
through  the  external  senses,  and  every  passion  in  excess, 
may  become  a  moral  cause  of  insanity.  Thus,  all,  how- 
ever opposite,  act  as  exciting  causes,  and  will  produce 
this  result.  Joy  and  grief,  pleasure  and  pain,  love  and 
hatred,  courage  and  fear,  temperance  and  ebriety,  may 
have  the  same  effect.  Vices,  also,  which  occasion  changes 
in  the  physical  constitution.  All  impressions  that  affect 
the  feelings  are  conveyed  to  the  sensorium,  and  operate 
according  to  the  degree  of  constitutional  susceptibility, 
and  the  nature  and  force  of  the  impression.  The  action 
of  the  heart  is  correspondent  with  the  impression,  and 
reacts  upon  the  brain  and  nervous  system.  Hence  there 
are  two  impressions  ;  the  one  primitive,  affecting  the  sen- 
sorium ;  the  other  consecutive,  but  simultaneously  affect- 
ing the  heart.  Thus  the  nervous  and  vascular  systems 
are  both  implicated ;  and  in  this  manner  moral  impres- 
sions become  causes  of  insanity.  The  moral  cause  is, 
therefore,  always  the  remote  cause;  the  physical,  the 
proximate — or  that  state  of  the  cerebral  functions,  which 
immediately  precedes,  the  peculiar  action  denominated 
maniacal.  A  frequent  cause  of  madness,  is  suffering  the 


SMITH'S  CASE  373 

mind  to  dwell  too  long  on  one  particular  train  of  thought, 
whether  the  subject  be  real  or  imaginary" 

You  will  perceive,  by  a  retrospect  of  the  evidence,  that 
we  have  shown  clearly,  hereditary  insanity,  in  the  pris- 
oner's family.  We  have  shown  also,  that  the  physical 
conformation  and  keen  susceptibilities  of  the  defendant, 
rendered  him  peculiarly  liable  to  the  influence  of  exciting 
causes,  calculated  to  develop  this  disease.  We  have  shown 
you,  that  in  his  happiness,  his  joy  became  transport — 
that  his  whole  soul  seemed  to  be  occupied  by  the  object 
of  his  affections  ;  that  his  prospects  were  not  clouded  by 
a  single  anticipation  of  sorrow  ;  that  his  imaginary  bliss 
was  perfect ;  and  that  such  continued  to  be  his  condition 
of  unalloyed  happiness  down  to  the  10th  day  of  April, 
1857.  We  have  shown  you  that  by  the  occurrences  of 
that  dark  day,  all  his  enjoyments  and  bright  prospects 
were  swept  away,  like  the  beams  of  the  morning,  by  the 
wings  of  the  tempest !  That  the  revulsion,  the  shock, 
was  so  great,  as  to  change  from  that  moment  the  entire 
character  of  the  man.  His  nervous  system  is  utterly  de- 
stroyed— the  generosity  of  his  nature  is  converted  into 
hatred  and  suspicion — he  becomes  moody,  morose,  and 
misanthropic — all  his  thoughts  are  concentrated  upon  one 
idea — the  betrayer  of  his  confidence,  which,  "  like  the  raven 
o'er  the  infected  house,  bodes  ill  to  all."  For  six  long 
months  he  finds  no  relief  to  this  torture — relief  did  I  say, 
— his  torments  are  rather  increased,  and  every  additional 
hour  is  freighted  with  superadded  horror  ! 

During  his  sad  and  wayward  course,  the  very  sympa- 
thetic efforts  resorted  to  by  his  friends  in  vain  endeavors 
to  administer  to  his  relief,  defeat  their  own  purpose,  and 
serve  only  to  probe  the  wounds  of  his  bleeding  heart — to 
remind  him  of  what  he  was,  and  of  what  he  is. 

There  are  afflictions  for  which  there  is  no  consolation — 
u  no  balm  in  Gilead — no  physician  there :"  their  only 
temporal  cure  is  the  grave.  We  are  told  that  he  sought 
that  grave,  and  that  even,  was  denied  him  !  In  this  con- 


374          FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

dition  of  mind  and  body,  of  brain  and  heart ;  do  you  re- 
quire an  elaborate  argument  from  me,  to  satisfy  you  that 
he  was  utterly  irresponsible  for  any  act  committed  by 
him,  having  a  direct  connection — an  almost  immediate 
connection — with  the  great  source  of  his  controlling 
griefs.  The  argument  that  should  satisfy  any  man  upon 
this  subject,  is  that  which  is  abundantly  supplied  by  the 
conduct  of  the  defendant,  from  the  day  of  this  disaster 
down  to  the  catastrophe  which  is  the  subject  of  this 
charge.  You  can  have  no  difficulty,  assuredly,  in  finding 
that  he  was  a  monomaniac  on  the  4th  of  November,  1857. 
But,  say  the  opposite  counsel,  you  must  show  that  he  was 
such,  at  the  very  time  of  the  perpetration  of  this  deed. 
How  do  we  show  that  ?  for  I  agree  we  are  bound  to  show 
it.  We  clearly  prove  by  Albright,  their  own  witness,  and 
I  am  happy  to  say,  a  man  of  unquestionable  veracity,  by 
whom  the  prisoner  was  arrested  within  five  minutes  of 
the  perpetration  of  the  fell  deed — say  at  five  o'clock — that 
at  the  time  of  the  arrest  "  the  prisoner  looked  very  wild 
out  of  the  eyes — was  apparently  very  nervous — his  frame 
shook — his  agitation  continued,  and  he  looked  like  an  in- 

O  ' 

sane  man."  Now,  on  the  night  of  the  same  day,  and  on 
the  very  next  day,  in  his  cell,  both  of  the  doctors  speak  of 
him  as  being  of  an  unsound  condition  of  mind  ;  and  one 
of  them  refers,  if  not  both,  to  physical  symptoms,  which 
unerringly  contribute  to  support  that  opinion. 

Now,  if  we  prove  a  man  to  be  insane  an  hour  before 
the  commission  of  an  act ;  and  then  prove  him  to  be  in- 
sane within  an  hour  after  the  commission  of  the  act ;  and 
then  follow  that  up,  by  showing  that  the  unsoundness  of 
his  mind  continued  for  several  consecutive  days  :•  do  we 
not  prove  as  clearly,  as  though  an  angel  spoke,  that  he 
was  insane  at  the  time  of  perpetrating  the  injury  ?  Then, 
having  done  all  that,  it  is  conclusive ;  and  we  may  now 
turn  triumphantly  to  the  opposite  counsel,  to  whom  we 
have  thus  transferred  the  laboring  oar,  and  call  upon 
them  to  show — which  they  are  bound  to  do — that  at  the 


SMITH'S  CASE.  375 

\ 

time  of  the  offence  complained  of,  the  prisoner  enjoyed 
an  unclouded  lucid  interval, — if  they  fail  in  that,  there  is 
no  hope  in  them. 

They  seem  to  acknowledge  that  this  obligation  rests 
upon  them,  for  they  have  made  an  effort — and  heaven 
and  earth  shall  witness  a  most  wretched  effort — to  dis- 
charge it.  They  offer  what  they  call  rebutting  evidence 
for  that  purpose.  What  is  their  rebuttal  ?  It  seems  to 
be  a  farce,  tacked  to  a  tragedy.  They  have  called  some 
half  dozen  witnesses,  to  whom  the  prisoner  was  utterly 
unknown ;  who  had  never  seen  him  before,  much  less 
been  acquainted  with  his  habits,  his  sensibilities,  his 
general  demeanor.  No  one  of  them  having  observed  him, 
more  than  five  minutes,  and  even  then,  with  the  most  un- 
favorable opportunities  for  judgment  or  opinion,  they 
state  what !  "  that  they  did  not  see  he  was  insane," — and 
with  a  little  more  conversation  than  "yes  "  or  " no,"  they 
observe  nothing  remarkable  in  the  state  of  his  mind! 
Why,  if  these  men  will  visit  Dr.  Kirkbride's  asylum — 
even  with  ten  times  the  opportunities  which  they  have 
enjoyed  in  this  instance,  and  with  a  very  natural  suspicion 
of  insanity — they  would  mistake  every  madman,  proba- 
bly for  a  superintendent,  or  a  profound  philosopher  ;  and 
turn  them  all  loose  again  upon  the  world.  Men  who 
judge  thus,  or  men  who  confide  in  such  judgment,  may 
be  congratulated  upon  the  improbability  of  ever  becoming 
insane  themselves, — "  folly,  folly,  is  only  free  I" 

Having  thus  briefly  and  imperfectly  endeavored  to  es- 
tablish our  positions,  and  to  overturn  those  of  the  prose- 
cution— with  what  success  you  shall  determine — I  have 
now  done.  The  prisoner  is  in  your  hands.  I  ask  no 
mercy  for  him.  I  had  almost  said  I  disdain  it — but  be 
merciful  to  yourselves.  By  his  conviction,  it  is  true,  you 
abridge  his  sufferings,  but  may  you  not  promote  and  ag- 
gravate your  own.  Can  you  reflect  upon  such  a  verdict, 
without  being  hereafter  haunted  by  the  "compunctious 
visitings  of  conscience."  If  you  think  you  can,  why 


376  FORENSIC   SPEECHES   OF   DAVID   PAUL  BROWN. 

strike  at  once  his  unit  out  of  the  sum  of  life.  And  when, 
after  your  labors  are  terminated,  you  return  again  to  your 
firesides  to  enjoy  the  charms  of  your  domestic  circle — the 
blessings  of  your  household  gods ;  then  tell  your  anxious 
wives  and  children,  who  assemble  around  you,  while  you 
relate  the  lamentable  history  of  this  triaK-tell  them  of 
"  one  who  loved  not  wisely — but  too  well ;"  tell  them  of 
the  pollution  of  female  innocence — the  betrayal  of  confid- 
ing friendship;'  tell  them  of  the  prisoner's  blighted  hopes 
• — his  wounded  honor — his  ruined  fortunes  and  his  shat- 
tered reason ;  tell  them  how  he  trusted,  and  how  he  was 
deceived  ji^and  when  your  hearers,  with  tearful  eyes  and 
trembling  lips,  earnestly  inquire  what  relief  you  afforded 
for  all  these  monstrous  and  most  unheard  of  wrongs ;  tell 
them — if  you  dare,  that  to  requite  him  for  all  these  suffer- 
ings, for  all  these  shames,  YOU  !  YOU  ! !  CONSIGNED  HIM  TO 
A  FELON'S  IGNOMINIOUS  GRAVE. 


WEAVER'S  CASE. 


THE  STATE  OF  DELAWARE  v.  ISAAC  H.  "WEAVER. 
CHARGED  WITH  MURDER. 

The  trial  of  this  case  lasted  nearly  a  week,  and  resulted 
in  a  verdict  of  "  not  guilty." 

For  the  State. 

Attorney  General  GEORGE  P.  FISHER. 

For  the  Defendant. 

Messrs.  GEORGE  B.  RODNEY,  of  New  Castle,  Delaware, 
and  DAVID  PAUL  BROWN. 


(377) 


378  FORENSIC   SPEECHES   OF  DAVID   PAUL   BROWN. 


SPEECH  IN  WEAVEK'S  CASE. 


WITH  SUBMISSION  TO  THE  COURT: 

This  case,  gentlemen  of  the  jury,  has  been  so  elabo- 
rately and  ably  argued  by  the  learned  gentlemen  who 
have  preceded  me,  that  if  you  will  give  me  your  patient 
attention,  so  as  that  which  I  say  may  be  clearly  under- 
stood and  properly  applied,  I  will  promise  you,  in  the  out- 
set, not  to  trespass  unnecessarily  on  your  time.  Indeed 
the  exhaustion  of  this  protracted  trial,  would  almost  seem 
to  forbid  it ;  yet,  notwithstanding  that  exhaustion,  in 
approaching  this  case  I  may  truly  say,  that  I  feel  just  as 
I  desire  to  feel,  in  addressing  a  body  of  men,  in  relation 
to  whom  I  occupy  the  position  I  now  do  in  regard  to 
you — that  of  a  comparative,  if  not  an  utter,  stranger.  I 
have  no  apprehensions  of  the  result ;  for,  with  an  enlight- 
ened court,  an  honest  jury  and  a  good  cause,  what  scope 
is  there  for  fear  ?  Still,  the  fatigues  of  such  a  trial  as 
this,  and  the  natural  influence  of  advancing  years,  ad- 
monish me  of  the  prudence  and  propriety  of  withdrawing 
from  deeply  interesting  and  absorbing  questions  of  this 
character,  and  leaving  the  turbulence  and  anxiety  of  the 
forensic  field  to  younger,  and  abler,  and  more  aspiring 
men  to  battle  and  to  bustle  in.  Yet,  may  it  please  your 
honors,  I  do  not  know  that  a  professional  man  can  die 
better  than  in  harness — in  the  faithful  fulfilment  of  his 
duties  to  his  oppressed  fellow-creatures ;  which  duties,  we 
are  divinely  taught,  largely  contribute  to  the  discharge 
of  those  obligations  which  we  owe  to  a  higher  and  heaven- 
lier  sphere. 


WEAVER'S  CASE.  379 

I  do  not  forget,  sirs,  in  speaking  thus,  that  I  am  not 
here  to  speak  of  myself,  or  for  myself,  but  of  and  for  the 
unhappy  prisoner  at  the  bar — unhappy,  even  if  innocent — 
for  his  future  life,  unjust  as  it  would  be,  will  still  be 
blurred  and  blasted  by  the  recorded  imputations  of  this 
day  :  doubly  unhappy,  if  guilty — for  your  verdict  must 
then  consign  him  either  to  an  ignominious  death  upon 
the  gallows,  or  a  protracted,  lingering,  living  death,  during 
the  whole  course  of  his  temporal  career,  within  the  mel- 
ancholy cells  of  a  common  jail.  Were  the  choice  mine, 
the  speedier  the  termination  of  existence,  the  better  1  Life 
is  only  desirable,  so  long  as  it  remains  uudivested  of  all 
that  makes  life  precious.  Death  is  a  blessing,  when  it 
terminates  the  scene  of  infamy  and  hopeless  suffering, 
and  transfers  a  man  to  that  tribunal  which  is  omnipotent, 
and  that  judgment  which  is  infallible — where  his  actions 
and  his  motives  can  never  be  misinterpreted  or  misunder- 
stood. 

)(  All  that  I  can  expect  from  you,  gentlemen  of  the  jury, 
/as  human  agents,  is  to  exercise  human  intelligence,  and 
to  give  me  a  fair  and  impartial  hearing ;  and,  while  you 
decide  like  fate,  to  feel  like  men.  But  how  can  you  com- 
meusurately  feel  for  the  condition  of  this  boy — for  his 
father,  now  hanging  over  him — for,  I  almost  am  afraid  to 
mention  it — for  that  absent  mother,  in  her  condition  of 
insupportable  suspense ;  while  the  hope  of  that  father,  and 
the  joy  of  that  mother's  heart,  are  awaiting  the  impending 
blow  which  must  consign  them  all  to  one  common  ruin  ? 
Your  sympathies  never  can  appreciate  justly  the  agonies 
of  this  scene.  You  may  be  fathers,  it  is  true,  and  feel  like 
parents  ;  but  you  regard  the  prisoner  as  a  child  of  others, 
not  as  your  own.  Sympathy  falls  far  short  of  that  actual 
experience,  the  lessons  of  which  are  only  to  be  taught 
through  the  medium  of  selfish  sufferings ;  and  heaven 
forbid  that  you  should  ever  be  subjected  to  such  experi- 
ence. 

How  precarious,  gentlemen  of  the  jury,  how  dangerous 


380  FORENSIC  SPEECHES  OF   DAVID   PAUL   BROWN. 

is  the  condition  of  youth — puzzled  with  mazes  and  per- 
plexed with  errors — with  none  of  those  safeguards  to 
rely  upon,  which  age  and  experience  alone  can  supply — 
launched  like  a  skiff  upon  a  stormy  ocean,  with  full  sail ; 
without  helm  or  rudder,  chart  or  compass,  star  or  pilot, 
to  enlighten  or  direct  it  in  its  course.  This  simple  case 
furnishes  a  fearful,  practical  and  painful  commentary  on 
the  truth  of  this  doctrine. 

But,  to  approach  the  cause.  Who  is  the  defendant, 
and  what  is  the  case  ?  You  see  before  you,  a  youth  of 
eighteen  summers — just  budding  into  manhood — a  father's 
hope  and  a  mother's  joy — charged  with  precocious  guilt — 
with  having  imbrued  his  almost  infant  hands  in  the  blood 
of  a  human  being — a  class-mate — a  friend  and  a  brother ; 
one  with  whom  he  had  lived  for  years  upon  terms  of 
familiarity,  harmony  and  affection ;  and  one,  the  untimely 
loss  of  whom,  no  one  can  mourn  more  than  himself.  Such 
then  is  the  prisoner.  Such  the  charge  which  this  indict- 
ment prefers  against  him. 

Now,  what  is  the  lamentable  history — what  the  melan- 
choly facts  of  this  case,  which  call  for  discussion  by  the 
counsel,  and  which  must  finally  appeal  to  you,  the  sworn 
twelve,  for  a  decision  ?  At  the  age  of  fourteen,  in  the 
year  1854,  the  prisoner  at  the  bar,  a  native  of  Maryland, 
was  placed  by  his  parents  at  the  Newark  College  of  this 
State,  for  moral  and  literary  instruction.  Passing  through 
the  usual  gradations  of  college  life,  we  find  him  on  the 
30th  day  of  March,  1858,  in  the  junior  class,  rapidly  ap- 
proaching his  matriculation.  At  this  time,  in  the  various 
classes  of  this  institution,  there  were  some  thirty  or  forty 
other  students;  all,  or  nearly  all,  older  than  himself; 
among  whom  was  the  deceased — at  that  period  a  member 
of  the  senior  class.  These  two  young  men  had  their 
chambers  at  the  college,  but  boarded,  together  with  some 
fifteen  others,  at  the  house  of  Mr.  Platt,  a  respectable 
gentleman,  and  one  of  the  trustees  of  the  seminary. 
There,  and  thus,  they  lived,  on  kind  and  friendly  terms, 


WEAVER'S  CASE.  381 

down  to  the  fatal  day  to  which  our  attention  is  more 
especially  to  be  directed,— the  30th  day  of  March,  1858. 
They  were  members  of  the  same  society,  inmates  of  the 
same  house,  ate  at  the  same  table,  and  lived  like  brothers ; 
notwithstanding  the  feeble  and  cruel  effort  on  the  part 
of  the  State — and  which  recoiled  upon  the  State — to  es- 
tablish animosity  between  them. 

Before  considering  the  events  of  that  day,  it  is  proper, 
and  may  be  profitable,  that  we  should  advert  to  some 
antecedent  matters  introduced  by  the  evidence,  having 
relation'  to  this  charge  ;  and  tending  to  show  that  evil 
may  sometimes  spring  from  the  mere  sportiveness  and 
impulsiveness  of  the  young,  who,  in  the  exuberance  and 
excitement  of  their  feelings,  too  often  overlook  or  disre- 
gard the  restraints  of  reason. 

It  would  seem  that  for  many  years  it  had  been  usual 
(a  usage  certainly  "  more  honored  in  the  breach  than  the 
observance")  at  the  periods  allotted  for  public  exercises, 
for  the  excluded  students  by  way  of  raillery,  or  amuse- 
ment, or  satire,  to  resort  to  sham  programmes,  ridiculing 
the  pretensions  of  the  different  candidates  for  public 
favor.  This,  though  certainly  rough  sport,  had  always 
previously  been  taken  in  good  part,  and  seemed  to  serve 
chiefly  to  relieve  the  monotony  of  college  life.  Certainly, 
no  one  ever  imagined  that  any  evil  would  result  from  it ; 
and  yet,  as  you  will  find,  DEATH  attended  the  sequel. 

A  public  exhibition  by  a  portion  of  two  of  the  classes, 
was  appointed  for  this  eventful — this  fatal  day.  The 
programme  and  announcement  of  the  performance  were 
made  public,  and  a  sham  or  burlesque  programme  was 
also  prepared  for  distribution,  and  deposited  in  the  room 
of  Mr.  Harrington,  under  double  lock  and  key.  About 
twelve  o'clock  of  this  day  (the  existence  of  these  sham 
programmes  having  been-  discovered),  those  who  were 
opposed  to  them,  determined  to  destroy  them ;  and  while 
the  others  were  absent  from  the  college,  at  their  respec- 
tive boarding  houses,  the  work  of  destruction  commenced 


382  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

— commenced  only  to  end  in  the  loss  of  life,  and  in  the 
consequent  institution  of  those  proceedings,  which  have 
occupied  our  anxious  attention  for  the  last  four  days. 

On  that  day — in  those  circumstances — while  Hazel,  one 
of  the  students,  stood  sentinel,  a  committee  of  five  of  Mr. 
Roach's  party,  suddenly  present  themselves  at  the  door  of 
Mr.  Harrington's  chamber.  They  first  attempt  picking 
the  lock,  that  not  succeeding,  they  violently  burst  open 
the  door ;  then  break  open  the  bureau  drawer,  and  finally 
prize  open  and  rifle  the-  trunk,  where  the  offensive  pro-, 
grammes  were  found.  These  programmes  are  forthwith 
conveyed,  first  to  Miles'  room  on  the  third  story,  then 
to  Higgins'  room  on  the  second  story,  the  door  of  which 
they  locked  and  barricaded.  In  the  meanwhile,  these 
proceedings  are  reported  to  the  absent  students,  of  both 
parties,  who  immediately  and  in  great  haste  repair  to 
the  scene  of  outrage  and  conflict.  Mr.  Roach,  appears 
to  have  been  the  leader  of  those  opposed  to  the  sham  pro- 
grammes ;  and  it  will  be  remembered,  as  stated  by  one  of 
the  witnesses,  that  the  very  morning  before,  he  showed 
great  excitement,  and  prophetically  declared,  that  if  he 
once  got  possession  of  the  programmes,  they  only  should 
be  taken  from  him  over  his  dead  body  : — this  suggestion, 
as  we  have  seen,  became  a  prediction.  One  might  almost 
see  the  finger  of  Providence  in  every  page  of  human  life, 
but  we  do  not  seek  for  it,  and  either  it  is  not  seen  or  not 
regarded. 

But  to  resume.  Friends  and  foes  having  reached  the 
college,  rush  into  Higgins'  chamber,  Roach  and  Harring- 
ton entering  abreast :  a  conflict,  a  scuffle,  a  row  or  an 
affray  was  the  result,  in  which  Harrington,  Roach, 
Miles,  Giles  and  Frazier  became  most  conspicuous. 

A  mass  of  the  programmes  was  thrown  into  the  stove, 
saturated  with  camphene,  or  other  inflammable  fluid  ;  the 
can  was  cast  upon  the  floor  ;  a  part  of  the  burning  papers 
was  rescued  from  the  flames  and  trampled  under  foot ; 
the  fluid  took  fire ;  the  combustibles  in  the  room  were  in 


WEAVER'S  CASE.  383 

flames,  and  the  whole  college  edifice  was  in  danger  ;  and 
here,  in  the  midst  of  this  outrageous  scene,  in  a  room 
fifteen  feet  square,  are  some  twenty  belligerent  young 
men,  divided  into  parties  and  struggling  for  mastery. 

This  scene  of  commotion  lasts  from  two  to  five  minutes 
— no  one  pretends  that  it  continued  longer — and  towards 
its  close,  Mr.  Roach  leaves  the  room,  and  is  traced  to  the 
front  door,  where  he  faints  from  the  loss  of  blood,  and  in 
less  than  an  hour,  he  expires.  These  are  the  melancholy 
outlines  of  this  sad  story. 

Mr.  Harrington,  Mr.  Giles,  and  young  "Weaver  are 
charged  with  the  homicide ;  the  two  former  have  been 
released  under  the  habeas  corpus,  and  the  last  is  now  upon 
his  trial,  and  awaits  his  doom  from  your  hands :  THE 

CHARGE  IS  MURDER. 

We  are  thus  brought,  before  entering  more  particularly 
into  the  facts  at  present,  to  a  brief  consideration  of  the 
law  ;  and  you  will  allow  me  to  say  in  the  outset,  that 
there  is  one  matter,  which,  unless  it  be  established  beyond 
the  reach  of  a  reasonable  doubt,  there  is  nothing  for  any 
branch  of  the  law  to  take  hold  of,  under  this  issue — I 
mean  the  fact  of  the  prisoner  having  struck  the  fatal 
blow :  unless  that  be  ascertained,  there  can  be  no  neces- 
sity for  discussing  the  degrees  of  guilt.  "We  are  not 
called  upon,  on  behalf  of  the  defendant,  to  show  who  did 
strike  the  blow ;  that  is  the  business  of  the  State,  which 
they  cannot  transfer  to  us  ;  and  if  they  fail  in  it,  your 
verdict  belongs  to  the  defendant. 

I  repeat,  then,  if  Weaver  did  not  strike  the  blow,  it  is 
nothing ;  if  that  fact  is  even  doubtful,  it  is  nothing  ;  but 
let  me  further  say,  if  he  undoubtedly  did  so  strike,  it  is 
not  murder ;  and  that  I  will  maintain  until  my  dying 
day. 

This  brings  us  at  once  to  the  attorney  general's  argu- 
ment upon  the  law.  He  begins,  as  the  prosecution  always 
begins,  with  the  common  law ;  it  is  the  most  serviceable, 
because  it  is  the  most  bloody  ;  yet,  surely,  it  has  not  much 


384  FORENSIC   SPEECHES   OF  DAVID   PAUL   BROWN. 

to  do  with  the  present  question,  except  that  the  decisions 
under  it  have  been  resorted  to  for  the  purpose  of  interpre- 
ting the  provisions  of  your  statute,  which,  according  to 
my  view,  could  have  been  readily  understood  of  them- 
selves. And,  indeed,  in  regard  to  the  statute,  there  ought 
to  be  no  difference  of  construction  between  us.  Murder, 
is  killing  with  express  malice  aforethought.  Murder  in 
the  second  degree,  is  killing  with  implied  malice  afore- 
thought. Manslaughter,  is  killing  from  provocation  or 
hot  blood,  which  implies  a  want  of  malice. 

Now,  what  is  malice  aforethought?  it  is  a  preconceived 
and  express  intention  to  kill — that  is  to  say,  the  facts 
must  show,  or  in  other  words  express,  that  the  defendant, 
at  the  time  of  perpetrating  the  act,  harbored  the  design 
to  take  life,  clearly  and  beyond  all  reasonable  doubt.  If 
that  be  not  clearly  and  conclusively  shown,  no  killing  can 
be  more  than  murder  in  the  second  degree — a  conviction 
of  which,  substitutes  for  death  upon  the  gallows,  imprison- 
ment for  life  in  the  penitentiary.  Remember,  murder  in 
the  second  degree  also  requires  malice  aforethought ;  but 
it  differs  from  murder  in  the  first  degree,  by  excluding  the 
intention  to  kill.  As  regards  this  point  in  our  case,  we 
shall  contend  that  upon  the  facts  of  the  case,  there  was 
not  only  no  intention  to  kill,  but  no  malice  ;  and  we  shall 
further  contend,  that  if  there  was  no  malice,  but  if  a  blow 
was  struck  in  an  affray  or  in  the  heat  of  blood,  or  in  a 
quarrel  or  struggle  that  lasted  but  two  minutes,  the  of- 
fence can  in  no  possibility  exceed  manslaughter.  Bear  in 
mind,  I  am  speaking  of  it  now  upon  the  strained  pre- 
sumption that  the  defendant  struck  the  blow,  which  the 
prosecution  has  not  shown,  and  cannot  show  ;  and  the 
omission  or  inability  to  show  which,  entitles  the  prisoner 
to  an  entire  acquittal. 

Pardon  a  few  words  more  in  regard  to  the  law,  as  ex- 
planatory of  what  I  have  said,  and  as  addressed  directly 
to  the  court.  First,  then :  a  mere  homicide  is  but  murder 
in  the  second  degree.  If  the  prosecution  would  elevate  it 


WEAVER'S  CASE.  385 

• 

to  murder  in  the  first  degree,  it  must  establish  former 
threats  or  grudges,  or  unequivocal  attendant  circumstan- 
ces, showing  a  predetermination  to  kill ;  or  if  the  defend- 
ant would  reduce  it  to  manslaughter — sudden  impulse 
arising  from  a  sudden  fight  or  provocation,  producing  hot 
blood,  and  evincing  want  of  premeditation  and  want  of 
malice,  must  be  shown  by  him. 

Having  thus  given  you  a  general  outline  of  the  circum- 
stances, and  presented  the  principles  of  the  LAW  which 
must  govern  the  results  of  this  trial ;  in  order  that  those 
principles  may  be  legitimately  brought  to  bear  upon  the 
salient  and  vital  points  of  the  evidence,  I  must  beg  you 
to  indulge  me,  while,  for  your  instruction  and  the  benefit 
of  the  prisoner,  I  again,  and  somewhat  more  particularly, 
crave  your  attention  to  the  testimony. 

The  whole  time  essentially  embraced  in  this  case,  so  far 
as  regards  the  perpetration  of  the  offence,  is  from  two  to 
five  minutes  ;  and  the  whole  space  to  which  our  attention 
is  to  be  directed  during  that  time,  and  with  reference  to 
this  offence,  is  the  chamber  of  Higgins.  Now,  within 
that  time  and  place,  who  ever  saw  Weaver  ?  Miles  is  the 
only  witness  who  saw  him  ;  and  he  states  that  when  he 
saw  him  coming  into  the  room,  he,  the  prisoner,  was  from 
four  to  six  feet  from  Roach — with  other  persons  between 
them — and  without  any  weapon  that  was  seen.  That 
from  that  time,  considering  Weaver  but  a  small  boy,  who 
could  do  no  harm,  no  further  attention  was  paid  to  him, 
nor  was  it  known  at  what  time  he  withdrew.  Although 
then  it  was  supposed  that  Weaver  could  not  do  much 
harm,  it  is  now  attempted  to  transfer  to  him  all  the  harm 
that  was  done — to  make  him,  in  short,  the  scape-goat  to 
bear  away  all  the  offences  of  the  college. 

He  was  not  intimately  connected  with  either  of  the 
parties :  it  is  not  shown  that  he  was  even  concerned  in 
the  concoction  of  the  programme,  or  that  he  felt  more 
than  a  boyish  interest  in  the  agitations  of  the  moment. 

We  do  not  impute  falsehood  to  those  witnesses  who  have 

25 


386  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

testified  against  him,  certainly ;  but  let  it  be  remembered 
that  they  were  all  swearing  themselves  out  of  a  scrape, 
and  although  they  would  not  voluntarily  perjure  them- 
selves for  the  whole  State,  yet,  when  their  own  feelings 
were  interested,  and  their  own  positions  affected,  it  was 
very  natural,  I  do  not  say  commendable,  that  they  should 
favorably  incline  to  themselves — each  one  being  desirous 
to  clear  his  own  skirts. 

But,  as  has  been  said,  after  the  lapse  of  two  minutes, 
Roach  leaves  that  room,  wounded  and  bleeding.  No  man 
living  contends,  or  no  man  living  proves,  that  Weaver 
was  there  then — nor  that  he  came  out  of  the  room  after- 
wards— nor  that  he  was  in  the  room  for  a  single  minute. 
Still,  the  State  alleges  he  was  guilty  of  murder — they 
substitute  fancy  for  fact — they  look 'upon  this  scene  with 
jaundiced  eyes ;  nay,  not  jaundiced  eyes,  for  that  would 
exhibit  yellow  tints,  but  with  cruel,  gloating,  and  blood- 
shot eyes ;  and  they  cry  out  before  you  with  united  voice, 
blood,  blood— hot,  reeking,  youthful  blood  ! — and  they  call 
upon  you  to  play  the  panders,  or  the  butchers,  to  cater  to 
their  sanguinary  and  depraved  appetites.  "Well,  if  they 
must  have  blood,  and  you  cannot  resist  their  appeals,  let 
them  prove  the  prisoner's  guilt,  and  then  gratify  their 
desires  to  their  heart's  content. 

Poor  Roach  passes,  or  was  taken,  as  has  been  said,  to 
the  front  of  the  building,  and  in  an  hour  was  no  more. 

One  of  the  witnesses  tells  us,  that  he  saw  young  Weaver 
at  that  time  do — what,  allow  me  to  say,  he  never  would 
have  done,  if  guilty — kneel  down  by  the  side  of  the  dying 
victim,  and  in  a  mournful  and  peculiar  voice,  speak  to 
Roach,  and  ask  him  if  he  was  dead  ;  and  this  young  scion 
of  a  witness,  also  testifies,  that  there  was  something  very 
remarkable,  at  that  time,  in  the  tone  of  the  prisoner's 
voice — that  it  was  mournful.  Why !  what,  let  me  ask, 
should  it  have  been  ?  What  could  it  have  been  ?  when 
contemplating  a  youthful  companion,  his  associate  for 
years  while  in  the  agonies  of  departing  life. 


WEAVER'S  CASE.  387 

But  to  turn  to  another,  yet  closely  connected  portion 
of  this  case :  The  KNIFE  is  a  great  scare-crow.  Had  it 
not  been  for  the  knife — this  knife  which  has  been  flour- 
ished about  by  the  prosecution  from  the  first  to  the  last 
of  this  drama — Weaver  would  never  have  been  thought 
of,  certainly  never  would  have  been  suspected ;  but  be- 
cause he  had  been  in  possession  of  this  knife  for  several 
months,  it  is  now  supposed  or  contended  that  he  must  be 
the  guilty  actor  in  this  bloody  scene.  Yet,  strange  to 
say,  the  other  knife — the  anomalous  knife — the  myste- 
rious knife,  that  was  present  at  the  witching  time  and 
place,  and  has  never  appeared  since — but  when  last  heard 
of,  was  thrown  into  the  coal-box  in  Higgins'  room — the 
learned  counsel  for  the  State  thinks,  is  of  no  consequence 
whatever.  Be  this  as  it  may,  that  knife,  at  least,  was 
never  in  Weaver's  hands,  and  I  shall  not,  therefore,  dwell 
upon  it.  It  is  not  my  business  to  convict  the  guilty — but 
to  acquit  the  innocent. 

But  when  enthusiastic,  and  learned  young  men,  become 
enlisted  under  the  flag  of  the  commonwealth,  as  adjuncts 
of  the  attorney  general,  they  see  but  one  side  of  the  ques- 
tion, and  rush  onward  under  the  influence  of  excitement 
and  strong  impulse,  aided,  as  in  the  present  instance,  by 
distinguished  talents,  to  the  accomplishment  of  the  work 
of  death.  When  my  young  friend,  who  opened  the  argu- 
ment on  the  part  of  the  State,  shall  bear  upon  his  brow 
the  impress  of  a  few  additional  years,  his  enthusiasm  will 
grow  cooler — his  arguments  become  more  liberal — though 
certainly  never  better.  Thank  heaven !  I  never  occupied 
the  same  relative  position  to  a  prisoner  that  he  does.  I 
cannot,  therefore,  perhaps,  justly  sympathize  with  him; 
but  I  must  say,  that  with  my  views,  I  would  not,  if  I 
could,  have  prosecuted  this  case  as  it  has  been  prosecuted, 
for  the  value  of  the  entire  State  of  Delaware. 

But,  to  return  again  to  the  melancholy  details :  after 
the  deceased  had  remained  bleeding  for  the  space  of  thirty 
minutes,  he  approaches  the  last  confines  of  life,  in  tech- 


388  FORENSIC    SPEECHES   OF   DAVID   PAUL    BROWN. 

nical  language,  he  is  in  articulo  mortis.  Dr.  Cooper,  Dr. 
Ferris,  Professor  Porter,  and  other  estimable  persons  are 
surrounding  him  in  his  last  agonies — and  then  it  is — as 
Dr.  Cooper  says,  and  he  is  supported  by  all  the  rest — in 
full  consciousness,  that  the  "  dying  declarations "  were 
made.  Those  were  fearful  declarations,  undoubtedly.  I 
am  among  those,  however,  who  do  not  accord  to  ordinary 
dying  declarations  that  full  faith  which  I  am  disposed  to 
repose  upon  testimony  when  it  undergoes  the  various  and 
severe  tests,  to  which  a  living  and  present  witness  is  sub- 
jected. I  have  no  doubt  but  that  the  dying  man  spoke 
the  truth,  that  is  to  say,  that  he  believed  all  that  he  said ; 
but  I  much  doubt  the  accuracy  of  what  he  said.  Judging 
from  the  uncertainty  of  all  that  took  place  in  the  room — 
the  clouded  or  smoky  memories  of  all  who  testified — the 
suddenness,  the  confusion,  the  irritation,  the  complication 
that  existed  at  the  time  ;  I  should  deem  it  very  hazardous 
to  rely  upon  the  statement  of  any  man,  living  or  dying. 
I  do  not  incline,  therefore,  to  adopt  this  implication  of 
Harrington — nor  do  I  use  the  dying  declarations  for  any 
other  purpose  than  to  show,  that  while  Roach  designated, 
according  to  his  impression,  the  perpetrator  of  the  deed, 
he  never  referred  to  the  prisoner  in  any  manner ;  and  vir- 
tually negatived  the  idea  that  Weaver  was  the  perpetra- 
tor. If  Weaver  ever  stood  before  him  (and  it  is  said  he 
was  wounded  in  front),  would  not  the  accused  have  been 
seen  ? — or  if  Weaver  stood  alongside  or  in  the  rear  of  him, 
would  not  the,  weapon  have  been  so  seen,  as  to  refer  to 
the  party  that  held  it  ?  I  pass  from  this  painful  portion 
of  the  subject,  simply  strengthening  my  position,  by  re- 
ferring to  the  testimony  of  Dr.  Cooper,  who  says,  that 
Roach  being  a  very  tall  man,  and  the  youthful  prisoner 
but  little  over  five  feet  in  height,  he  did  not  think  it 
probable  that  the  latter  could  have  inflicted  the  wound 
upon  the  former,  without,  in  some  way,  elevating  him- 
self above  his  natural  height.  It  is  clear  that  Mr.  Roach 


WEAVER'S  CASE.  389 

never  saw  Weaver  in  the  room — and  I  summou  him  from 
his  grave  as  a  witness  for  this  defence. 

But  the  counsel  for  the  State  object  to  these  dying  de- 
clarations, because  the  victim  was  so  near  his  death — this 
is  strange  doctrine  ! — that — if  I  understand  the  matter 
rightly — is  the  very  time  when  such  declarations  are  alone 
valuable.  It  is  not  in  health,  or  in  hope,  that  they  are  to 
be  taken.  It  is  when  a  man  is  dying,  or  he  thinks  it, 
that  they  alone  become  evidence — or  in  the  language  of 
Chief  Baron  Eyre,  "  when  every  hope  in  this  world  is 
gone — when  every  motive  to  falsehood  is  silenced,  and 
when  the  mind  is  induced  by  the  most  powerful  con- 
siderations to  speak  the  truth — a  situation  so  solemn  and 
so  awful,  is  considered  by  the  law  as  creating  an  obliga- 
tion equal  to  that  which  is  imposed  by  a  positive  oath, 
administered  in  a  court  of  justice." 

But  they  further  say,  that  the  deceased,  at  the  time, 
had  not  sufficient  possession  of  his  mental  faculties.  That 
is  an  extraordinary  argument,  and  directly  opposed  to  the 
medical  evidence — and  tends  only  to  show,  that  they  are 
willing  to  make  one  man  mad,  in  order  to  convict  another 
of  murder. 

What  next — still  "Weaver  and  the  knife ! — this  is  the 
whole  burthen  of  the  charge.  It  is  said,  that  Weaver 
went  to  his  room  and  washed  his  knife — but  again,  I  ask 
where  is  the  evidence  of  it  ?  There  was  no  unquestion- 
able blood  in  the  room,  anywhere — no  mark — no  "  damned 
spot."  One  witness,  it  is  true,  says,  there  was  what 
he  supposed  to  be  blood  on  the  towel :  that  might  all 
have  been,  consistently  with  the  ordinary  accidents  or 
incidents  of  life,  even  if  it  had  actually  been  blood. 
But  why  was  not  that  supposed  blood  analyzed,  or  ex- 
amined microscopically,  chemically,  or  otherwise — that 
it  might  have  been  ascertained  whether  it  was  or  was  not 
blood  ? 

Again,  as  regards  the  knife:  it  has  been  said  it  was 
found  in  Weaver's  trunk.  If  you  are  going  to  make  the 


390  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN". 

defendant  out  a  felon  by  forced  construction,  give  him  at 
least  the  benefit  of  the  ordinary  craft  and  cunning  of  a 
felon.  If  he  had  used  that  knife  to  kill  Roach,  would  he 
have  taken  the  dagger  to  his  own  room,  to  marshal  his 
pursuers  the  way  to  his  detection  ?  would  he  have  left  it 
there  exposed  in  an  unlocked  trunk  ?  would  he  not  have 
thrown  it  into  the  creek  that  ran  near  by  ?  or  would  he 
not  have  concealed  it  in  some  one  of  a  thousand  ways,  or  a 
thousand  places,  where  it  never  could  have  appeared  in 
evidence  against  him  ?  It  has  not  been  proved  that  the 
stain  on  the  guard  of  the  knife,  was  blood  at  all ;  and  it 
has  certainly  not  been  proved  that  it  was  human  blood : 
and  if  both  had  been  proven,  Mr.  Wilson  has  shown  you, 
that  it  must  have  been  produced  by  having  been  handled 
by  Mr.  Evans,  after  having  first  been  seen  spotless,  by 
himself.  The  language  of  the  witness  runs  thus  : — "  I  am 
positive,  that,  when  after  the  death  of  the  deceased,  I 
looked  at  the  knife,  there  was  no  blood  on  the  guard  ; 
but  subsequently  Mr.  Evans  handled  the  knife,  his  hand 
being  then  bloody — and  I  then  saw  blood  on  the  guard, 
and  I  am  positive  that  the  blood  on  the  guard  came 
off  of  Mr.  Evans'  hand.  There  is  no  kind  of  doubt 
in  my  mind,  that  the  blood  was  not  on  the  knife  when 
I  first  took  it  in  my  hands,  nor  is  there  any  kind  of 
doubt  in  my  mind,  that  the  blood  on  the  guard  came  off 
of  Evans'  hand." 

Then,  as  to  the  SHEATH,  the  inside  of  which  is  said  to 
exhibit  traces  of  blood — that  is  not  denied,  but  it  is  ex- 
plained by  us,  by  showing  that  prior  to  last  Christmas, 
that  knife  was  used  by  Wm.  Adams,  a  young  man  of 
Baltimore,  in  killing  a  ferocious  dog;  and  that  after 
having  been  imperfectly  wiped,  it  was  thrust  into  this 
sheath,  and  thereby  left  those  stains,  which  the  Common- 
wealth's counsel  have  made  so  much  of.  They  could 
readily  have  tested  the  accuracy  of  that  evidence,  with- 
out following  poor  Adams  from  one  end  of  Baltimore  to 
another,  up  and  down  and  crosswise,  iu  a  sort  of  wild 


WEAVER'S  CASE.  391 

/joose  chase,  in  order  to  overtake  him  in  falsehood.  Why 
did  not  they  prove  it  human  blood  ?  It  could  easily  have 
been  done ;  for  in  this  enlightened  day,  science  can 
readily  discriminate  between  the  blood  of  brutes  and  the 
blood  of  man. 

But  there  is  another  word  I  have  to  say  in  regard 
to  this  matter,  to  show  that  it  was  neither  the  hand  of 
the  prisoner,  nor  the  prisoner's  weapon,  that  produced 
this  fatal  wound;  and  I  infer  that  from  the  character 
of  the  wound  itself, — such  a  knife  as  this  might  have 
produced  death,  but  it  did  not  produce  the  wound  in 
the  present  instance,  inasmuch  as  the  form  of  the  knife 
is  totally  inconsistent  with  the  character  of  the  wound. 
Dr.  Cooper  says,  that  he  probed  the  wound  to  the 
depth  of  two  inches,  with  his  finger,  and  that  the 
wound  was  of  equal  width :  now  look  at  that  knife — for 
more  than  two  inches  above  the  point,  it  diminishes 
gradually  more  than  one-half  the  width  of  the  blade — 
so  that  the  wound  inflicted  would  have  gradually  nar- 
rowed, until  it  reached  its  termination.  And  it  is  not 
straining  a  point,  to  say — though  I  no  not  rest  upon  it — 
that  it  is  quite  as  probable  that  the  knife  which  was 
thrown  into  the  coal  pit  in  Higgins'  room,  produced  the 
wound,  as  that  this  is  the  guilty  instrument. 

The  jury  will  have  observed,  that  in  the  discussion 
of  this  case,  I  have  made  no  reference  whatever  to  the 
very  doubtful  and  equivocal  confessions  of  the  prisoner, 
as  testified  to  by  Hudders  and  Bradley — bearing  relation 
as  they  do,  of  father-in-law  and  son-in-law — and  neither 
recommended  by  that  relation — by  their  own  characters, 
nor  by  the  character  and  nature  of  their  statement^ 
to  favorable  consideration,  or  reliance.  One  of  them 
seems  to  be  contradicted  by  others ;  and  it  would  rather 
appear  that  he  has  contradicted  himself.  At  all  events 
he  professes  motives,  which  are  not  in  entire  consistency 
with  his  conduct  upon  the  present  occasion.  He  was 
directly  contradicted  before  the  coroner's  inquest,  by 


392  FORENSIC   SPEECHES   OF   DAVID   PAUL   BROWN. 

the  defendant  himself;  who  stated  to  his  teeth,  that 
the  witness  had  misunderstood  or  misrepresented  what 
he,  the  prisoner,  had  said.  Nor  was  this  all:  this 
young  man,  without  friends  or  advisers,  immediately 
calls  upon  Hudders,  and  boldly  states  to  him,  that  the 
language  used — "  that  he  believed  he  had  struck  the 
deceased  with  a  knife," — was  not  a  true  representation  of 
what  took  place ;  but  that  the  language  actually  used 
was,  "  that  he  feared  the  possession  of  the  knife  would 
be  calculated  to  implicate  him  in  the  affair."  Without, 
however,  pausing  upon  this  branch  of  the  subject,  I 
simply  refer  you,  in  relation  to  it,  to  what  has  been 
said,  and  so  well  said,  by  my  learned  and  able  col- 
league, Mr.  Rodney.  He  has  presented  it  so  clearly, 
so  fully,  and  so  cogently  before  you,  as  to  obviate  the 
necessity  for  any  further  remarks  of  mine.  A  strong 
man  strikes  a  strong  blow,  and  one  that  generally 
serves  its  turn,  without  occasion  for  repetition.  I  have 
no  disposition  to  travel  over  the  same  field  that  has 
already  been  so  fully  beaten.  If  you  think  that  the 
flimsy  statements  made  by  these  men,  or  the  imagina- 
tive account  given  by  Constable,  are  sufficient  to  resist 
the  reasoning  that  has  been  urged  against  them,  and  to 
induce  you  to  convict  the  prisoner,  nothing  that  I  could 
say  would  be  calculated  to  forestall  his  doom. 

In  my  argument,  as  you  must  have  perceived,  I  have 
avoided  as  far  as  possible,  those  points  of  discussion 
which  I  conceived  to  have  been  satisfactorily  disposed  of. 
The  case  is  almost  too  narrow,  perhaps,  in  its  essentials, 
for  two,  to  move  abreast ;  and  I  have  therefore  satisfied 
myself  with  the  humble  task  of  a  gleaner,  collecting 
the  scraps,  or  the  grain,  which  may  have  fallen  by  the 
way-side — so  that  nothing  may  be  lost  that  may  prove 
available  to  the  defendant  in  this  death-struggle. 

My  humble  task  is  now  done — however  feeble  it  may 
be,  it  at  least  possesses  the  merit  of  frankness,  of  can- 
dor, and  of  brevity.  I  have  urged  nothing  upon  you, 


WEAVER'S  CASE.  393 

but  what  my  own  feelings  and  my  own  reason  have 
urged  upon  me,  under  the  deep  responsibilities  imposed 
by  the  investigation  of  this  case.  I  pray  you  not  to 
resist  that  which  has  been  said,  from  the  notion,  I  fear 
too  generally  entertained,  that  counsel  often  act  under 
influences  inconsistent  with  impartiality  or  sincerity: — 
this,  let  me  tell  you,  is  an  erroneous  notion.  There  is 
no  class  of  citizens,  not  even  excluding  the  clergy  them- 
selves, that  are  more  faithful  to  their  duties,  or  more 
sensible  to  the  high  obligations  of  moral  honesty  and 
professional  honor,  than  an  approved  and  well  deserving 
member  of  the  bar.  His  duties  are  often  of  the  loftiest 
and  most  momentous  character.  They  involve  property, 
liberty,  reputation,  and  as  in  the  present  case,  life 
itself.  And  in  relation  to  the  discharge  of  all  those  ob- 
ligations, a  lawyer,  as  properly  understood,  never  proves 
recreant  to  his  trust. 

\/  The  case  is  now  in  your  hands.  Having  been  es- 
/franged  from  your  families,  probably  for  more  than 
the  usual  length  of  time  ;  after  pronouncing  your  ver- 
dict upon  this  fearful  issue,  you  will  return  to  them 
again — again  to  enjoy  their  smiles,  and  to  share  in  their 
consolations  and  their  happiness  ;  and  when  you  shall 
retire  to  your  repose,  after  the  labors,  and  toils,  and 
privations  you  have  passed  through,  that  repose,  we 
trust,  will  be  sweetened  by  the  consciousness  of  having 
this  day  faithfully  fulfilled  the  pledges,  which  you  have 
solemnly  assumed,  by  pronouncing  the  verdict .  of  " 
GUILTY." 


PAGE. 

Frontispiece. — Photograph  of  David  Paul  Brown — taken  by  F. 

Gutekunst,  Philadelphia,  in  the  year  1868. 
Speech  in   the  case  of  John  Binns,  charged  with  Assault  and 

Battery.     A  First  Speech— 1818 7 

Opening  Speech,  and  Argument  in  the  Impeachment  of,  Judge 

Porter  before  the  Senate  of  Pennsylvania — 1825.  ...       27 
Speech  in  the  case  of  the  Journeymen  Tailors,   on  a  criminal 

charge  of  Conspiracy— 1827 93 

Speech  in  the  case  of  Lucretia  Chapman,  otherwise  called  Lucretia 

Espos  y  Mina,  tried  for  Murder— 1832 135 

Speech  in  the  case  of  Dr.  Frost  on  a  charge  of  Manslaughter, 

tried  in  New  York  City— 1837 199 

Speech  in  the  case  of  A.  W.  Holmes,  before  the  U.  S.  District 

Court,  on  a  charge  of  Manslaughter  on  the  high  seas — 1842.    235 
Speech  in  the  case  of  Morgan  Hinchman  v.  Samuel  S.  Richie  et 

al.  :  Civil  Suit— Conspiracy— 1849 257 

Speech  in  the  case  of   Thos.  Washington  Smith,  charged  with 

Murder— 1858 340 

Speech  in  the  case  of  Isaac  H.  "Weaver,  charged  with  Murder,  tried 

at  New  Castle,  Delaware— 1858 377 


(395) 


A     000048129     1 


